STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 91-09
Issued: February 27, 1992
__________________________________________
)
MONMOUTH SCHOOL BUS DRIVERS & CUSTODIANS/ )
MAINTENANCE ASSOCIATION/MTA/NEA, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
MONMOUTH SCHOOL COMMITTEE, )
)
Respondent. )
__________________________________________)
The question presented in this prohibited practice case is whether the
Monmouth School Committee (hereinafter referred to as "Employer") violated
26 M.R.S.A. s 964(1)(A), (B), (C) and (D) through the following: a super-
visory employee's making certain anti-union statements both before and
after a representation election, interfering with the ability of bargaining
unit employees to vote in that election, unilaterally changing several
terms and conditions of employment of the unit employees after the
Complainant was certified as their bargaining agent, discharging three unit
employees, the Superintendent of Schools' refusal to meet with a represen-
tative of the bargaining agent to discuss one of the discharges, and other
conduct. We hold that some of the charged conduct was established in the
record and violated the Municipal Public Employees Labor Relations Law
("Act"), 26 M.R.S.A. Ch. 9-A (1988 and Supp. 1991). We will fashion
appropriate remedies necessary to redress such violations and to effectuate
the policies of the Act.
The prohibited practice complaint that initiated this action was filed
by the Complainant, Monmouth School Bus Drivers & Custodians/Maintenance
Association/MTA/NEA ("Union"), pursuant to 968(5)(B) of the Act, on
November 16, 1990. The Complainant filed an amended complaint on April 3,
1991. The Employer filed its answer to the original complaint on
December 11, 1990, and its answer to the amended complaint was filed on
April 16, 1991. The Employer's answers denied that the Employer transgressed
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any provision of the Act and moved to dismiss the Union's complaints.
A prehearing conference on the case was held on December 18, 1990,
Public Chair Peter T. Dawson presiding. On December 27, 1990, Chair Dawson
issued a Prehearing Conference Memorandum and Order, the contents of which
are incorporated herein by reference. Prior to the evidentiary hearing and
in compliance with the Prehearing Order, the parties each filed a written
memorandum briefly outlining their factual and legal positions.
Hearings on the merits of the case were conducted on January 9,
May 8 and 9, and June 5, 1991, by the Maine Labor Relations Board
("Board"), Public Chair Peter T. Dawson presiding, with Employee
Representative George W. Lambertson. Mr. Thacher E. Turner served as the
Employer Representative on the Board at the January 9, 1991, hearing.
On February 25, 1991, Governor McKernan nominated Mr. Howard Reiche, Jr.,
to succeed Mr. Turner as the Primary Employer Representative on the Board.
Mr. Reiche's nomination was confirmed by the Maine Senate on March 18,
1991. Employer Representative Reiche has reviewed the transcript of the
January 9th hearing and has fully participated in the rest of the case.
Throughout these proceedings, the Complainant has been represented by John
C. McCurry, Esq., and the Respondent has been represented by Michael E.
Saucier, Esq. The parties were given full opportunity to examine and
cross-examine witnesses, to introduce documentary evidence, and to make
argument. The parties filed posthearing briefs which were received on
August 23, 1991, and were considered by the Board in reaching its decision.
The Board met to deliberate on the merits of the case on September 10, 1991,
and November 14, 1991.
JURISDICTION
The Complainant, Monmouth School Bus Drivers & Custodians/Maintenance
Association/MTA/NEA, is the certified bargaining agent, within the defini-
tion of 26 M.R.S.A. 962(2) (1988), for a bargaining unit composed of the
school bus drivers, custodians and maintenance employees employed by the
Monmouth School Committee. The Respondent, Monmouth School Committee, is the
public employer, within the definition of 26 M.R.S.A. 962(7) (Supp. 1991),
of the employees whose classifications are included in the above-named
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bargaining unit. At all times relevant to the charges against each of
them, Rodney Spearin has been the Superintendent of the Monmouth School
Department and Don Butterfield and Everett Ray served, successively, as the
Transportation and Maintenance Supervisor for the Monmouth School Department.
Since all of the charged acts concerning Mr. Spearin, Mr. Butterfield and
Mr. Ray arose out of and were performed by each of them within the course
of their employment with the Monmouth School Committee, all three are
public employers within the meaning of 26 M.R.S.A. 962(7) (Supp. 1991).
The jurisdiction of the Maine Labor Relations Board to hear this case and
to render a decision and order herein lies in 26 M.R.S.A. 968(5)(C)
(1988).
FINDINGS OF FACT
Upon review of the entire record, the Labor Relations Board finds:
1. The Complainant, Monmouth School Bus Drivers & Custodians/
Maintenance Association/MTA/NEA, is the certified bargaining agent, within
the definition of 26 M.R.S.A. 962(2), for a bargaining unit composed of
the bus drivers, custodians and maintenance workers employed by the
Monmouth School Committee.
2. The Respondent, Monmouth School Committee, and its agents or
employees Rodney Spearin, Don Butterfield and Everett Ray, are public
employers, within the definition of 26 M.R.S.A. 962(7), of all of the
employees whose classifications are mentioned in the preceding paragraph.
3. During late November, 1989, two of the Monmouth school bus drivers,
Susan Clements and Deborah Diamond, informed Transportation and Maintenance
Supervisor Don Butterfield that the bus drivers and custodians were looking
into becoming organized for purposes of collective bargaining.
4. During January, 1990, local union spokesperson Lyle Boutin
informed Mr. Butterfield that the drivers and custodians were in the pro-
cess of seeking representation through the Maine Teachers Association.
5. During January, 1990, and after speaking with the drivers and
custodians, Mr. Butterfield developed a proposal for the drivers' and
custodians' wages and benefits for the 1990-91 school year. This proposal
was based on the wages and benefits enjoyed by the drivers and custodians
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in surrounding school districts.
6. On February 13, 1990, a Petition for Bargaining Agent Election was
filed for the Monmouth Bus Drivers and Custodians/Maintenance bargaining
unit.
7. Mr. Butterfield submitted the wage and benefit proposal mentioned
in paragraph 5 above to the Superintendent of Schools, who incorporated it
into the school department's proposed budget for the 1990-91 school year.
8. Prior to the bargaining agent election, Mr. Butterfield told the
drivers and custodians that the wage and benefit package noted in paragraph 5
would be implemented for the 1990-91 school year.
9. The 1989-90 school year was Ms. Diamond's first year of employment
with the Monmouth School Department. After securing a license as a school
bus driver, Ms. Diamond drove a twenty-two passenger bus and transported
students with special needs to programs in Winthrop, Gardiner and Randolph.
10. The special needs run continues through most of the summer school
vacation. In March of 1990, Ms. Diamond asked Mr. Butterfield whether she
would be able to continue driving the special needs run during the summer
of 1990. Mr. Butterfield responded by stating that Ms. Diamond would have
the run, unless the union won the election in which case the run would be
awarded on the basis of seniority.
11. Subsequent to the dialogue reported in the preceding paragraph but
prior to the bargaining agent election, Mr. Butterfield told Ms. Diamond
that, because the mother of one of the students who would be on the summer
run had requested that Ms. Diamond continue driving the special needs stu-
dents during the summer, he would "rule out" seniority as a factor in
assigning that run. Ms. Diamond was offered and accepted the summer special
needs run.
12. On May 4, 1990, the Maine Labor Relations Board notified the par-
ties that a representation election for the bargaining unit described in
paragraph 1 hereof would be conducted in the Conference Room at Monmouth
Academy on May 29, 1990, between the hours of 1:00 and 1:30 p.m.
13. During May, 1990, prior to the bargaining agent election,
Mr. Butterfield told unit employees Susan Clements and June Carr that if
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the union was selected as the bargaining agent by the unit employees, the
employees would not get raises, they would go back to basic pay, they would
lose their benefits and start everything from scratch, and they would be
required to wear uniforms.
14. On May 18, 1990, Maine Teachers Association UniServ Director Susan
Rowe sent a letter to Superintendent of Schools Rodney Spearin which stated:
I am following-up our telephone conversation from 5/16/90
regarding reports of Supervisor Butterfield's discussions with
the eligible employees in the up-coming certification election on
5/29/90. Specifically, it has been reported to me that he has
made threats to several employees regarding "voting the union
in". Statements such as "your pay will go back to $5.00 per
hour", "you'll have to wear a tie", and other verbal threats are
not only offensive, but illegal. Furthermore, asking employees
directly how they plan to vote, is interfering with the legal
rights employees have to organize with a collective bargaining
representative.
The MTA expects administration's behavior to be professional
and above aboard (sic).
I strongly suggest you investigate this situation and take
action to stop this illegal behavior immediately. As an advocate
for the group, I will take further action if these activities do
not stop.
15. Mr. Spearin received the letter quoted in the preceding paragraph;
however, he did not discuss its contents with Mr. Butterfield.
16. Prior to the representation election, Mr. Butterfield asked
Ms. Clements and Ms. Carr how they were going to vote and asked Ms. Carr
about who was sympathetic to the union and who was not.
17. Prior to the election, Mr. Butterfield knew the identity of some
of the employees who supported the union and that of some who opposed the
union's becoming the bargaining agent. Mr. Butterfield believed that his
sister, Blendine Butterfield, Carroll Cooper and Ms. Clements were against
the union.
18. On the date of the representation election, May 29, 1990, a group
of first, second and third graders was scheduled to attend a program at
Cumston Hall, the municipal auditorium, between the hours of 11:30 a.m. and
1:00 p.m. Three school buses were needed to transport the students from
and back to the Cottrell School, which is located approximately one-quarter
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mile from the polling place.
19. The three drivers who made the Cumston Hall run were Blendine
Butterfield, Susan Clements and Deborah Grinnell.
20. The May 29th program ran late and the students boarded the buses
for the return trip at approximately 1:20 p.m. As a result, the buses did
not arrive at the Cottrell School until moments before the polls closed.
21. The two drivers whose buses were the last to unload, Susan
Clements and Deborah Grinnell, ran from their buses to the polling place
and arrived in time to cast their ballots.
22. Of the 16 employees eligible to vote in the representation elec-
tion, 15 voted: 9 voted in favor of the union becoming the bargaining
agent, 5 voted for no representation, and 1 ballot was challenged and set
aside pursuant to Board Rule 3.06(A). As a result of the election, the
Monmouth Teachers Association/MTA/NEA was certified as the exclusive
bargaining agent for the unit.
23. On May 29, 1990, Mr. Spearin received a hand-delivered letter from
Ms. Rowe that stated:
The Maine Teachers Association hereby gives written notice
of its intent to negotiate matters requiring appropriation of
money for a 1990-91 contract pursuant to 26 M.R.S.A. ss 965 1.
24. In formulating a response to the letter noted in the preceding
paragraph, Mr. Spearin sought the advice of the Maine School Management
Association.
25. After consulting with Maine School Management, Mr. Spearin decided
not to implement the wage and benefit profile mentioned in paragraphs 5, 7
and 8 above. The unit employees' benefits were frozen and their wages were
increased by 6 percent for the coming year. The 6 percent wage increase
was the average of the wage adjustments for all of the school department
employees for the 1990-91 school year and was somewhat lower than the wage
increase included in the wage and benefit profile.
26. During July, 1990, and September, 1990, Mr. Butterfield met with
the custodians and the bus drivers, respectively, and informed each group
that, since the bargaining agent had demanded negotiations over the wages,
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hours and working conditions of the unit employees, the employer could not
lawfully implement the wage and benefit profile that had been discussed
earlier. Mr. Butterfield also told the employees that they would be
receiving a 6 percent raise for the coming year.
27. During the summer of 1989, Mr. Butterfield visited Ms. Diamond at
her home and recruited her to become a bus driver for the Monmouth School
Department. Reluctant to accept the position, Ms. Diamond explained that
she was happy staying home with her children and that her family was
"getting by." Mr. Butterfield told Ms. Diamond that she would be able to
take her children with her while she performed her duties and she accepted
the position.
28. When she was hired, Ms. Diamond did not have a school bus opera-
tor's license; therefore, when she began her employment she drove the
"Mustangs" van--a small vehicle not marked as a school bus. One does not
need a school bus driver's license to operate a vehicle such as the
"Mustangs" van.
29. Mr. Butterfield and Ms. Diamond initially believed that Ms. Diamond
would have to use a standard 72-passenger bus in taking the school bus
driver exam; therefore, Mr. Butterfield began training Ms. Diamond in the
operation of the large vehicle. They soon learned that Ms. Diamond could
take the test using a 22-passenger bus, which is the same height and width
as the 72-passenger bus but is much shorter in length.
30. After becoming a licensed school bus driver, Ms. Diamond did prac-
tice driving 72-passenger buses. On one occasion, she went out to famil-
iarize herself and become more comfortable driving the 72-passenger bus
with her sister, Ms. Clements, and, on another occasion, she went out with
Ms. Grinnell.
31. Ms. Diamond occasionally drove a 72-passenger bus during the school
year, shuttling empty buses from one location to another. Ms. Diamond
remained uncomfortable operating a large bus and Mr. Butterfield assured
her that she would only be required to drive students using the 22-passenger
bus. Mr. Butterfield did tell Ms. Diamond that she could practice driving
a 72-passenger bus anytime she liked.
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32. Prior to the bargaining agent election, Mr. Butterfield was unsuc-
cessful in his efforts to learn how Ms. Diamond intended to vote.
33. On Monday, June 4, 1990, the 22-passenger bus that Ms. Diamond
usually drove went into the garage for repairs and Ms. Diamond used
Mr. Butterfield's personal automobile to perform her job duties from Monday
through Thursday morning of that week.
34. On the afternoon of Thursday, June 7, 1990, a heavy rain began to
fall as Ms. Diamond was leaving the high school to begin her run. The
wipers on Mr. Butterfield's car were not keeping the windshield clear of
water and they appeared, to Ms. Diamond, not to be in contact with the
windshield at all.
35. Ms. Diamond felt that it was unsafe to operate the vehicle in its
current condition and went to Mr. Butterfield's office to report the
problem.
36. Mr. Butterfield was not at the office; however, his secretary,
Blendine Butterfield, gave Ms. Diamond a container of Windex and some paper
towels with which to wash the windshield and called her brother out of a
meeting that he was attending at the high school to address the problem.
37. After cleaning the windshield, Ms. Diamond drove over to the high
school and met Mr. Butterfield. The two then returned to the transporta-
tion and maintenance office in Mr. Butterfield's car.
38. Upon arriving at the office, Mr. Butterfield appeared to be
annoyed and stated that the only problem was that a film on the windshield
needed to be washed off.
39. Using paper towels and Windex, Mr. Butterfield washed the
windshield and the wiper blades. He then gave Ms. Diamond the option of
driving his car or a 36-passenger bus, or of going home. Ms. Diamond
responded that Mr. Butterfield was not being fair because his vehicle was
unsafe and she did not feel comfortable driving the larger bus.
Mr. Butterfield offered to let Ms. Diamond drive the 36-passenger bus for a
few minutes prior to starting her run so that she could become comfortable
driving it.
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40. Mr. Butterfield became upset because he felt that there was no
longer anything wrong with his windshield; yet, Ms. Diamond refused to
drive his vehicle and she wouldn't drive the 36-passenger bus either.
Since she refused to select either work option mentioned in paragraph 39,
Mr. Butterfield sent Ms. Diamond home.
41. Upon leaving, Ms. Diamond told Mr. Butterfield that she intended
to "take [the matter] higher." Mr. Butterfield responded that she should
do whatever she wanted and "see how far [she would] get."
42. Mr. Butterfield used his own personal vehicle to complete
Ms. Diamond's run.
43. Prior to June, 1990, the long-standing practice at the Monmouth
School Department had been to allow bus drivers to take their children or
other relatives along on trips out of town or while driving their regular
routes. The statement made to Ms. Diamond when she was hired, reported in
paragraph 27 hereof, was consistent with this established practice.
44. After the bargaining agent election, Mr. Spearin held an adminis-
trative team meeting which focused on risk-management. Mr. Spearin told
the administrators, including Mr. Butterfield, that they should examine all
of the facilities, buildings and vehicles in order to minimize potential
liability for the school department.
45. As part of the risk-management initiative, Mr. Butterfield began
to question whether the practice described in paragraph 43 above might be
exposing the department to avoidable potential liability.
46. Mr. Butterfield first told the Superintendent of the existence of
the practice described in paragraph 43 at this time, and the Superintendent
directed Mr. Butterfield to ask the school department's insurance carrier
about the advisability of continuing this practice.
47. Mr. Butterfield telephoned the school department's insurance
agent, Morse, Payson and Noyes in Portland, and spoke with a Mr. Leonard
Taylor. After describing the practice outlined in paragraph 43 in general
and Ms. Diamond's situation in particular, Mr. Butterfield was told that
the practice was exposing the department to unnecessary risk.
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48. Mr. Butterfield asked Mr. Taylor for a letter outlining the
latter's opinion of the risk management implications of the policy
described in paragraph 43, so that Mr. Butterfield could show it to the bus
drivers and use it as justification for discontinuing the practice.
49. Upon learning the insurance agent's opinion, the Superintendent
ordered Mr. Butterfield to discontinue the practice described in paragraph 43.
50. In response to the request noted in the preceding paragraph,
Mr. Taylor sent Mr. Butterfield a letter dated June 25, 1990.
RE: SCHOOL BUS LIABILITY
This letter is in response to our most recent telephone conver-
sation in regards to passengers riding on the school districts
buses.
From a practical reason the passengers on any Monmouth School
Department's buses should only be those who are connected to the
school department by way of teacher, chaperones, volunteers, etc.
Other passengers should only be those students who are being
transported to a duly approved school function.
No other passengers should be carried on your buses at any time.
From a risk management standpoint, should a serious accident
occur the Monmouth (sic) could be placed in a very difficult
position and this is an area that can be controlled and it is
therefore suggested that only school personnel and students be
allowed to ride on school buses. As a more practical matter if
you check with Industry, in which they have vehicles for
transportation of their personnel, I think you will find that
Industry likewise restricts the transportation only to employees.
I trust this letter will be of some assistance to you. If I can
be of any further help, please let me know.
51. Consistent with the established practice noted in paragraph 43
hereof and pursuant to Mr. Butterfield's statement to Ms. Diamond mentioned
in paragraph 27, Ms. Diamond often took her five-year-old son with her on
her bus runs, especially the afternoon run, during the 1989-90 school year.
52. As noted in paragraph 11 above, Mr. Butterfield assigned Ms. Diamond
to drive the run for students with special needs during the summer of 1990.
The summer run was scheduled to begin on July 2nd and to end on August 18th.
53. On Friday, June 29, 1990, the last business day before Ms. Diamond
was scheduled to begin the summer run for students with special needs,
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Mr. Butterfield informed her that she would not be able to take her children
with her on the job because doing so exposed the Employer to avoidable
liability risk.
54. Mr. Butterfield told Ms. Diamond that the reason for changing the
longstanding practice was outlined in a letter from the school department's
insurer and he offered to let her read the letter.
55. Ms. Diamond and her sister, Ms. Clements, went to Mr. Butterfield's
office on June 29th and read the letter quoted in paragraph 50 above.
56. Since she had no alternate child care arrangements in place,
Ms. Diamond had planned to take her son and her school-age daughter on the
summer run.
57. After reading the letter quoted in paragraph 50, Ms. Diamond said:
"So you're taking my job away from me." Mr. Butterfield denied this, but
stated that she could no longer take her children on the bus with her since
that exposed the school department to avoidable potential liability.
58. Ms. Diamond said that she could not find anyone to baby-sit,
especially because it involved an hour or so in both the morning and the
afternoon. Mr. Butterfield stated that that was a decision Ms. Diamond
would have to make and asked her to let him know what she decided.
Ms. Diamond responded that he wouldn't have to wait for an answer because
she wouldn't be able to find a baby-sitter.
59. Mr. Butterfield asked if Ms. Diamond was saying that she was not
going to do the summer run and she responded that that was correct.
60. Mr. Butterfield drove the summer run to which Ms. Diamond had been
assigned.
61. The established practice at the Monmouth School Department was to
fill bus driver and custodian vacancies by word-of-mouth. Persons hearing
of an opening in which they were interested would approach Mr. Butterfield
or he might recruit a particular individual to fill a vacancy.
62. During late June or early July, 1989, Mr. Butterfield approached
one of the bus drivers, Lyle Boutin, and asked Mr. Boutin whether he would
be interested in working on building maintenance on a trial basis.
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Mr. Butterfield told Mr. Boutin that he hoped to get the maintenance posi-
tion included as a regular part-time or full-time position in the school
department's budget, at some future time.
63. Mr. Boutin accepted the maintenance position on a trial basis and
performed that work on a full-time basis through the summer of 1989 and
part-time during weeks that school was in session, through January of 1990.
During that period, Mr. Boutin spent the balance of his 40-hour work week
driving a school bus. During weeks when school was not in session, from
September, 1989, through January, 1990, Mr. Boutin worked 40 hours per week
performing the maintenance duties.
64. While working in the maintenance position, Mr. Boutin performed
all of the duties associated with the position.
65. During January or February of 1990, Mr. Spearin informed
Mr. Butterfield that the school department budget was frozen; therefore,
Mr. Butterfield informed Mr. Boutin that he could no longer perform main-
tenance work because it was not a regular item in the department's budget.
66. During January, 1990, Mr. Butterfield submitted to Mr. Spearin a
proposal that a full-time maintenance position be included as a regular
position in the school department's operating budget for the next fiscal
year.
67. Mr. Butterfield's proposal was partially adopted by the school
committee and was funded by the town. A part-time maintenance position was
authorized effective July 1, 1990.
68. Throughout the period from July, 1989, through April or May, 1990,
Mr. Boutin and Mr. Butterfield often discussed the maintenance postion, its
status as a regularly budgeted position, and Mr. Boutin's chances of
getting the job, if it became an approved position.
69. In several conversations during the time period noted in the pre-
ceding paragraph, Mr. Butterfield told Mr. Boutin that his work was satis-
factory and that no one else on staff was interested in and qualified for
the position; therefore, if the maintenance position was adopted as part of
the school department's annual operating budget, it looked like Mr. Boutin
would get the position.
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70. During the spring of 1990, approximately during the month of
April, Mr. Butterfield told Mr. Boutin that the part-time maintenance
position had been approved as part of the school department's budget for
the next fiscal year.
71. On or about the date of the bargaining agent election, May 29,
1990, Mr. Butterfield first learned that Mr. Boutin was president and head
of the Union.
72. Shortly after the bargaining agent election, Mr. Butterfield told
Mr. Boutin that, because the Union had been selected as the bargaining
agent, the opening for the maintenance position would be posted and
Mr. Boutin was welcome to apply for it.
73. The Superintendent testified that posting the vacancy in the main-
tenance position was required by the school department's employment policy;
however, the policy's posting requirement does not apply to the employee
classifications in the bargaining unit represented by the Union.
74. Mr. Boutin and two other unit employees, Mr. Cooper and
Mr. Slauenwhite, applied for and were interviewed by the Superintendent
and Mr. Butterfield to fill the part-time maintenance position.
75. The successful applicant for the maintenance position was required
to be knowledgeable in repairing pumps, motors and mechanical systems.
76. Mr. Boutin had previously worked as an equipment mechanic.
77. The Superintendent and Mr. Butterfield concluded independently
that the bus mechanic, Mr. Slauenwhite, who had previously been employed as
an airline mechanic supervisor and who had remodeled several houses, was
the best qualified candidate. Mr. Slauenwhite was hired to fill the part-
time maintenance position.
78. Mr. Boutin conceded that Mr. Slauenwhite was more qualified than
he in the area of automotive maintenance.
79. Subsequent to hiring the part-time maintenance person, the school
department filled a bus driver vacancy, without having first posted a
notice of such vacancy for the information of unit employees.
80. Each summer, a school bus driver safety conference or "bus rally"
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is held at the University of Maine in Orono.
81. Attendance at the conference is not required by law.
82. Prior to the summer of 1990, the Monmouth School Department did
not require its bus drivers to attend the conference; however, those who
did so were paid 8 hours for each day of the 2-day session.
83. As part of the risk management initiative mentioned in paragraph
44 above, the school department decided that attendance at the summer 1990
conference would be a condition of continued employment for its bus drivers.
84. The 1990 conference was held on Thursday and Friday, August 2nd
and 3rd.
85. On or about June 6, 1990, and again on or about July 9, 1990,
Mr. Butterfield sent each driver a memo reminding the drivers of the dates
of the conference and that attendance was mandatory and offering the drivers
transportation to and from the conference.
86. The parties stipulated that on July 30, 1990, Marc Ayotte, a
member of the Board's legal staff, and Union representative Susan Rowe had
a telephone conversation. As a result of that conversation, Ms. Rowe
called Susan Clements and learned that four of the bus drivers had a
problem or found it to be a hardship to be required to attend the August
1990 bus rally. Ms. Rowe also learned from Ms. Clements that she had been
the unidentified unit employee who had called the Board's office to inquire
whether the Employer could require the drivers to attend the rally and who
had been told to contact the Union regarding her inquiry.
87. On July 31, 1990, Mr. Butterfield called all the drivers,
including Deborah Diamond, to inquire whether they would be traveling to
Orono together on a school bus or whether they had their own transportation.
88. During the conversation with Mr. Butterfield, Ms. Diamond replied
that she would not be attending the conference and Mr. Butterfield stated
that Ms. Diamond would be jeopardizing her job if she didn't attend the
conference. Ms. Diamond stated that she wasn't going to worry about that
at that time.
89. During the conversation reported in the two preceding paragraphs,
Mr. Butterfield did not ask, and Ms. Diamond did not relate, the reason why
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Ms. Diamond would not be attending the conference.
90. On August 2, 1990, Ms. Diamond had an appointment with a physician
to seek treatment for an ear infection and a gastrointestinal problem.
Ms. Diamond had been suffering from both conditions since at least
July 31, 1990.
91. On August 2, 1990, a dance was held for the conference attendees
after the first day's session.
92. Several Monmouth bus drivers, including Blendine Butterfield,
Susan Clements, Deborah Grinnell, Kelly Stevens, Lyle Boutin and Carroll
Cooper, were sitting together at a picnic table with Mr. Butterfield and
all were drinking beer or wine coolers. Ms. Clements testified that during
the course of a conversation about German shepherd dogs, Ms. Clements men-
tioned that Ms. Diamond's German shepherd was very loyal. Ms. Clements
stated, "Debbie's right flat on the couch and he won't leave her side."
Mr. Butterfield then asked what was wrong with Ms. Diamond and Ms. Clements
told him that her sister was ill with an ear infection and a gastro-
intestinal problem.
93. Ms. Clements testified that while none of the Monmouth employees
present was intoxicated, she herself was "feeling good" and everyone was
"happy."
94. Mr. Butterfield denies statements regarding Ms. Diamond were made
in his presence at the dance. Mr. Boutin did not remember any conversation
at the dance concerning Ms. Diamond's physical condition. No one else was
asked about the alleged conversation.
95. Mr. Butterfield had no contact with Ms. Diamond from July 31, 1990,
through August 7, 1990.
96. On August 7, 1990, Mr. Butterfield sent a letter to Ms. Diamond
that stated:
One of the terms of employment as a bus driver for the
Monmouth School System is to attend all workshops requested by
the supervisor.
On August 2nd and 3rd there was a workshop held at the
University of Maine in Orono which was requested of all full time
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transportation personnel of Monmouth. Your failure to attend this
workshop terminates your employment with the Monmouth School
Department.
Termination effective immediately.
97. June Carr is a custodian with the Monmouth School Department and
serves as the Union steward for the custodians.
98. On August 6, 1990, Ms. Carr started receiving harassing telephone
calls during the night at her home. The phone would ring and, when someone
answered it, the caller said nothing and only heavy breathing could be
heard from the caller.
99. Ms. Carr had had the same telephone number for about 18 years and
had never received harassing calls prior to August 6, 1990.
100. Ms. Carr received harassing calls during the nights of
August 6, 7, 14 and 15, and during the afternoon of August 16, 1990.
101. As a result of receiving these calls, Ms. Carr first approached a
local police officer, who told her there was little he could do, and then
Ms. Carr called the telephone company. The latter told Ms. Carr that they
could put a tap on her line or, if Ms. Carr had any idea who might be
making the calls, she might suggest to such persons that a tap had been
installed and the calls might stop.
102. On August 17, 1990, Ms. Carr met casually with Mr. Butterfield,
Blendine Butterfield and Carroll Cooper at the Transportation Director's
Office. Ms. Carr described the harassing calls that she had been receiving,
and said that the telephone company had installed a tap on her phone.
103. Ms. Carr did not receive any more harassing calls after
August 17, 1990.
104. In the fall of 1989, custodian Maria Rebeca Velazquez was
scheduled to work at the high school, Monmouth Academy, from 11:30 a.m.
to 8:00 p.m. with a half hour out for dinner.
105. Upon arriving for work, Ms. Velazquez's first duty was to clean
the new gym floor. It was imperative that this duty be carried out
promptly because middle school students would track in gravel and grit when
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they used the gym for physical education in the morning, and that grit
would be ground into the floor when students walked across the floor at
lunch, which began at 11:45 am.
106. One day in early October, 1989, Mr. Butterfield was at the high
school at 11:30 am. looking for Ms. Velazquez. After waiting for a while,
Mr. Butterfield asked two teachers who were standing in the gym whether
they had seen Ms. Velazquez; they had not seen her. Mr. Butterfield then
went out to the parking lot to see whether Ms. Velazquez's car was there
and he met Ms. Velazquez, who was just arriving for work at about noon.
107. Upon encountering Ms. Velazquez, Mr. Butterfield explained why it
was important for her to be at work on time, outlining the facts noted in
paragraph 105 above, and asked why she was late and whether there was
anything he could do to help Ms. Velazquez to arrive on time. Ms. Velazquez
gave no reason for having been late.
108. Shortly before Christmas break in December of 1989, a student at
the high school had thrown up in a corridor and Mr. Butterfield had to look
for Ms. Velazquez to clean the area. Ms. Velazquez was late for work and
Mr. Butterfield cleaned the area himself. Mr. Butterfield again spoke with
Ms. Velazquez about the importance of being at work on time and for
carrying out assigned duties in a timely fashion; again, Ms. Velazquez gave
no reason for having been late for work. Mr. Butterfield concluded the
conversation by indicating that the next time Ms. Velazquez was late for
work he would "have no choice but to write it up and put it in her file."
109. In January, 1990, Ms. Velazquez was again late for work and
Mr. Butterfield met with her in the Gifted and Talented Program office at
the high school. Mr. Butterfield told Ms. Velazquez that the high school
principal was "on [his] back" about the fact that the gym floor and the
cafeteria were not being cleaned in a timely fashion due to Ms. Velazquez's
being late for work. Mr. Butterfield again asked whether there was a
reason why Ms. Velazquez had been late and whether he could help by
adjusting her shift and assigning the noon duty to another employee.
Ms. Velazquez responded that she didn't need to talk with Mr. Butterfield
unless her representative was present, whereupon Mr. Butterfield suggested
that he and Ms. Velazquez meet with the high school principal, Mr. Crawford,
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since the latter was the next level in the employer's chain-of-command.
110. Mr. Butterfield and Ms. Velazquez met with Mr. Crawford to discuss
Ms. Velazquez's being late for work and again Ms. Velazquez gave no reason
for her tardiness.
111. On January 12, 1990, Mr. Butterfield presented a written reprimand
to Ms. Velazquez which stated:
This letter is in reference to the meeting that was held
in Mr. Crawford's office on January 9, 1990 between you, Mr.
Crawford and myself. At this meeting we discussed the issue of
your being late to work on Monday, January 8th and not doing the
gym floor, also being late on January 9th. Other topics discussed
were areas not being cleaned as requested and not following
instructions given by your supervisor.
During this meeting you were given an opportunity to give
your reason for being late and not doing your work as requested,
but you stated you didn't have any reasons.
It was pointed out to you that if this happens again that
you would be suspended with pay until a meeting could be set up
between Mr. Spearin, Mr. Crawford, yourself and myself. If it
comes to this, it could mean that your employment with the
Monmouth School System could be terminated.
112. Ms. Velazquez signed the reprimand, indicating that she had
received and understood it.
113. On May 30, 1990, the school department administrative team, con-
sisting of the Superintendent; the high school, middle school and elemen-
tary school principals; the Director of Special Education, and the
Maintenance and Transportation Supervisor met in a conference room at the
high school, beginning at approximately 12:35 p.m.
114. About 5-10 minutes into the meeting, Mr. Butterfield was told that
two custodians were sitting in the secretary's office, located adjacent to
the conference room.
115. During the course of the meeting, the impending departure of a
middle school custodian was discussed. Because there was only one month
left in the fiscal year and approximately two weeks left in the school year
and because the school department was operating on a very limited budget,
it was decided to transfer one of the high school custodians to the middle
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school. Since Ms. Velazquez had worked at the middle school for about 10
years before going to the high school, she was familiar with the duties
required and wouldn't have to be trained; therefore, it was decided to
transfer Ms. Velazquez to the middle school.
116. Upon emerging from the meeting at approximately 2 p.m.,
Mr. Butterfield saw Ms. Velazquez and another custodian sitting in the
secretary's office. Mr. Butterfield then met with Ms. Velazquez in the
conference room and stated that it was not good utilization of her time for
her to have been sitting in the secretary's office from 12:40 to 2:00 p.m.
Ms. Velazquez did not respond. Mr. Butterfield then told Ms. Velazquez
that she was being transferred to the middle school; however, she could
continue to work the same schedule as she had at the high school.
Ms. Velazquez was reluctant to accept the transfer, but Mr. Butterfield
explained that it was necessary for the good of the department.
117. On June 20, 1990, Mr. Butterfield gave the following written
reprimand to Ms. Velazquez:
This is a follow up letter in reference to the meetings
that were held between you and myself on 5/30/90 in the con-
ference room of the Academy and on 6/12/90 in the principal's
office of the Academy.
On May 30, 1990 the administration team was holding a
meeting in the conference room at the Academy at 12:40, during
that meeting that we had from 12:40 until 2:00 you sat in the
secretary's office the entire time which is not good utilization
of time.
I met with you at 2:30 on May 30th to discuss the fact that
I was going to move you to the Middle School Complex at which
time you voiced that you would rather not. I explained that the
reason for moving you to this complex was that overall it would
best serve the maintenance department.
Becky you have been late for work several times this also
needs to stop. On June llth it was brought to my attention by
the Principal of the Middle School Complex, David Bartlett, that
your mother was in and you sat and talked with her for a long
period of time. Becky, during your 1/2 hour lunch and your two
15 minute break your time is yours, but the other time during
your shift is to be used for good responsible work and not used
as time wasted.
Becky, I want you to understand that the next time that
these kind of incidences occur it would mean a meeting with the
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superintendent and could mean your employment with the Monmouth
School System could be terminated.
118. The middle school principal had reported the June llth incident
noted in the above reprimand to Mr. Butterfield and the latter had no per-
sonal knowledge relating to that event.
119. Upon receiving the written reprimand, Ms. Velazquez denied that
she had been in the secretary's office from 12:40 to 2:00 p.m. She told
Mr. Butterfield that she had been cleaning the cafeteria from 12:00 to
1:45 p.m. on that day and that she then spent her 15 minute break in the
secretary's office waiting to speak with the high school principal about
the seating arrangement for the graduation. Ms. Velazquez further told
Mr. Butterfield that, while her mother's car may have been parked in the
middle school lot for about an hour on June 11, it had taken her mother a
good deal of time to locate her and the two had spoken with each other for
only a few minutes. For these reasons, Ms. Velazquez refused to sign the
reprimand and Mr. Butterfield noted such refusal thereon.
120. Prior to the end of the school year, Mr. Butterfield met with each
custodian individually to learn what schedule that custodian would prefer
to work during the summer of 1990. After talking with the custodians,
Mr. Butterfield determined that the summer work schedule would be 6:00 a.m.
to 2:30 p.m.
121. During the school year, the custodians report directly to their
assigned school and begin work on schedule. During the summer of 1990, the
custodians were required to report to Mr. Butterfield's office at 6:00 a.m.
to receive their work assignments for that day. On days when he couldn't
be in his office at 6:00 a.m., Mr. Butterfield would post the custodians'
work assignments on the office door and the custodian who was assigned to
the school building where that day's work was to be performed had keys to
let the rest of the crew into the building.
122. Beginning with June 20, 1990, the day that she received the writ-
ten reprimand quoted in paragraph 117 hereof, Ms. Velazquez was late for
work on 9 of the next 17 days that she worked. She was 5 to 45 minutes late
and, on average, she was 22.78 minutes late to work during these 9 days.
-20-
123. On July 23, 1990, Mr. Butterfield met with Ms. Velazquez at the
high school and informed her orally that, because of her repeatedly being
late for work, she was being suspended with pay until she met with the
Superintendent on Thursday, July 26.
124. On July 23, 1990, Mr. Butterfield sent Ms. Velazquez a letter
which stated:
This is a follow up letter of our conversation on this date
at 9:30 a.m. at Monmouth Academy when I informed you that you
were suspended with pay until a meeting with you, the superinten-
dent and myself with representative if you wish. This meeting is
set for Thursday morning at 10:00 a.m. at the conference room at
Monmouth Academy.
125. On July 26, 1990, Ms. Velazquez and MTA UniServ Director Rowe met
with Superintendent Spearin and Mr. Butterfield. The meeting lasted about
20 minutes and is accurately summarized in a letter written to Mr. Spearin
by Ms. Rowe on August 7, 1990. The letter states:
I am in receipt of a discipline letter you sent to Rebecca
Velazquez on 7/30/90. Ms. Velazquez forwarded it to me.
The MTA finds it most interesting that you are discussing in
the letter something new and much different from what we heard at
the disciplinary meeting held on 7/26/90. It is the MTA's
understanding (as well as Ms. Velazquez) that she is losing five
(5) days pay because she was fifteen (15) minutes tardy on
7/23/90. When I asked you to provide documentation and specifics
of your allegations, you clearly responded, "I can't get into
that today".
When I asked you if others were punished for being late by
losing five (5) days pay, you responded, "I won't discuss that
today".
Also, you mentioned at the meeting that you were not happy
with Ms. Velazquez's "work ethic". When I asked you to be spe-
cific, once again, you said, "I can't get into that today".
Since you are continuing to add charges on top of each
other, my question to you is - When are you going to get into it?
In other words - the MTA believes this punishment is too
harsh for the alleged violation. You do not back up your charges
with facts or set clear goals as to the expectations
Administration has of its employees.
What is clear to the MTA, is that you are evading the issues
for whatever reasons and unduly punishing innocent victims.
-21-
Clearly, this not only hurts Ms. Velazquez, but others in the
Bargaining Unit AND Administration as well.
Finally, in behalf of Ms. Velazquez, I'd like to reiterate
MTA's position in light of your position "not to talk".
1. Ms. Velazquez should be returned her lost pay for the
five (5) days.
2. Ms. Velazquez should have these letters removed from her
personnel file.
3. Ms. Velazquez should be allowed to place a letter of
rebuttal if she chooses.
126. As a result of the meeting noted in paragraph 125 hereof, the
Superintendent wrote a letter to Ms. Velazquez dated July 30, 1990, which
stated:
It is most important that you take greater responsibility
than you have in the past to be at your work station at the times
assigned. While you are working for the Monmouth schools, that
time ought to be productive and not compromised by any other
activity.
At our meeting on 7/26/90, I advised you that your record on
these issues has been unacceptable. Henceforth, I expect respon-
sible, reliable behavior on your part on these issues or any
issues or directives from your supervisor/building administrator.
Termination of employment from the Monmouth School
Department will follow on any further or future problem in these
areas.
127. Without further contact with Ms. Velazquez after sending the letter
quoted in the preceding paragraph, the Superintendent sent Ms. Velazquez
another letter on July 31, 1990, stating:
My letter to you dated July 30, 1990 should be amended by
the addition of the following information not included in that
letter.
You are hereby suspended without pay from your custodial
position for a five day period beginning on July 26 and ending on
August 1. You may report to work on August 2.
128. On August 2, 1990, Ms. Velazquez returned to work after having
completed her 5-day suspension.
129. Ms. Velazquez worked on Thursday, August 2, and Friday, August 3,
and arrived on time on those days. On Monday, August 6, Ms. Velazquez was
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ill and did not report for work. On August 7, Ms. Velazquez reported to
work on time.
130. On Wednesday, August 8, Mr. Butterfield was not in his office at
the start of the work day; however, he had posted instructions for the crew
to report to the middle school and to begin work at that building.
131. The crew went to the middle school; however, they could not get
into the building because Ms. Velazquez was the only one who had keys to
the building and she was late for work.
132. The crew waited for Ms. Velazquez for 15 or 20 minutes and then a
custodian, Mr. Ruman, called Mr. Butterfield to get access to the building.
133. Mr. Butterfield arrived at the middle school at about 6:40 a.m.
and let the crew into the building and Ms. Velazquez arrived for work
shortly thereafter.
134. Mr. Butterfield contacted the Superintendent and the school
department's attorney and then met with Ms. Velazquez at about 9:30 a.m. on
August 8, 1990, at which time he informed her that she was suspended.
135. Later on August 8, Mr. Butterfield sent Ms. Velazquez a letter
notifying her of the date and time of a scheduled meeting with the
Superintendent. The letter stated:
This is a follow up letter of our telephone conversation on
this date in which I informed you of a meeting with the
Superintendent to be held on Friday August 10th at 8:00 at the
Conference Room at Monmouth Academy. You may have a represen-
tative if you wish.
136. Since Ms. Velazquez was scheduled to be out of state on August 10,
the meeting was rescheduled for August 13, 1990.
137. On August 10, 1990, the Superintendent told Mr. Butterfield, "I'm
overruling your decision to hold a meeting on August 13 because I'm here
today," and asked Mr. Butterfield to phone Ms. Velazquez to inform her that
she was terminated.
138. On August 10, Mr. Butterfield phoned Ms. Velazquez and informed
her of her termination. Later that day, Ms. Velazquez turned in her keys
and reviewed her personnel file.
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139. During the conversation between Mr. Butterfield and the
Superintendent noted in paragraph 137 hereof, Mr. Butterfield stated that,
since he had set up a meeting between Ms. Velazquez and the Superintendent,
such meeting should occur. The Superintendent stated that he would not
attend any meeting and, if Mr. Butterfield wanted to hold a meeting, he
could set one up and ask the high school principal to attend.
140. Mr. Butterfield set up a meeting including Ms. Velazquez, any
representative she wished to bring, the high school principal and
Mr. Butterfield for August 14, 1990.
141. On August 12, 1990, local Union representatives Lyle Boutin, Kelly
Stevens and June Carr each notified Mr. Butterfield that the meeting sched-
uled for August 14 would not occur because Ms. Velazquez's "representative"
would be unable to attend.
142. On August 14, 1990, Mr. Butterfield sent Ms. Velazquez a letter
which stated:
Per my telephone conversation on August 10, 1990, you are
terminated effective immediately for the reasons outlined in the
superintendent's letter dated July 30, 1990.
143. The longstanding policy at the Monmouth School Department has
been for custodians to make up time that they missed when they were late
for work. If custodians arrived late, they made up the time at the end of
the day or before the end of the week; therefore, they would not lose any
work time and could be paid for their normal forty-hour work week.
144. At the beginning of the 1989-90 school year, Mr. Butterfield had a
meeting with the custodians during which he announced the continuation of
the policy mentioned in the preceding paragraph.
145. While Mr. Butterfield preferred to receive advance notice that a
custodian would be late for work, he allowed those who had been late
without prior notice to make up the time at the end of the day or during the
same week.
146. During the course of the 1989-90 school year, several custodians
made up time pursuant to the policy cited in paragraph 143 above.
147. Mr. Butterfield allowed Ms. Velazquez to make up time through at
least June 25, 1990, including at least one occasion that served as part of
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the justification for the five-day suspension that Ms. Velazquez received
on June 26, 1990.
148. At all times relevant hereto, there has been no standard operating
procedure in place at the Monmouth School Department controlling the
disciplining of employees.
149. During the summer of 1990, neither Mr. Butterfield nor anyone on
behalf of the Union accurately documented the times at which custodians,
other than Ms. Velazquez, arrived for work.
150. Based on anecdotal testimony, it is clear that most of the custo-
dians were late for work, in varying degrees of frequency, during the
summer of 1990.
151. While most of the custodians were late for work from time to time
during the summer of 1990, none were as late on any particular occasion or
were late as often as was Ms. Velazquez.
152. During the summer of 1990, Mr. Butterfield gave oral reprimands to
two custodians and a written reprimand to one of the two for being late for
work.
153. While Mr. Butterfield testified that the disciplinary action men-
tioned in the preceding paragraph remedied the lateness problem with those
two employees, Ms. Carr testified that one custodian who received an oral
reprimand continued to be late for work thereafter.
154. The administrative team of the Monmouth School Department regu-
larly holds open forums to receive comments and concerns from both the
school children's parents and members of the general public.
155. During two public forums held in the spring and summer of 1990,
approximately 90 percent of the discussion concerned problems surrounding
the transportation of students.
156. Three separate transportation-related problems emerged during the
public forums: (1) people felt that students were being picked up from
home too early in the morning; (2) kindergarten students were spending too
much time riding on the buses; and (3) the late bus run, transporting stu-
dents back home after extra-curricular afternoon activities, was occurring
-25-
too late in the day, especially in the winter months.
157. Prior to the public forums, the school buses would begin picking
up students from their homes at 6:10 a.m. Many forum attendees felt this
was too early. To address this concern, the first pick-ups were delayed to
6:40 a.m. and the rest of the department's transportation schedule was
pushed back one-half hour for the 1990-91 school year.
158. Prior to the public forums, some kindergarten students were riding
on buses an hour and ten minutes to an hour and fifteen minutes per trip.
The previous school year, the bus routes for high school, middle school,
and grades 1 through 3 students had been cut and the longest any of those
students were on the buses was 30 to 35 minutes.
159. Prior to the public forums, there had been three kindergarten
pick-up runs and each was one and one-half hours long.
160. In order to address the parental concern about the length of time
kindergarten students were riding on buses, the school department hired
an additional driver and added a fourth kindergarten pick-up run for
the 1990-91 school year.
161. The changes noted in the preceding paragraph resulted in shortening
each kindergarten driver's run from one and one-half hours to one hour and
resulted in kindergarten children spending, at most, 35 minutes on the
buses.
162. Beginning with the 1989-90 school year, Monmouth students who par-
ticipated in after-school activities were transported back home on the late
bus. Unlike the regular school bus services which pick up and return stu-
dents directly from and to their homes, the late bus delivered students to
areas near their homes and each student had to find his/her own way home
from there.
163. During the winter months, it is often well after dark when stu-
dents on the late bus are dropped off. Parents attending the public forums
expressed concern about this situation and felt that, if the late runs could
start one-half hour earlier, much of the problem could be avoided.
164. Prior to the public forums, the late bus runs began at 3:30 p.m.
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165. During the 1989-90 school year, the drivers who drove the regular
afternoon runs would return just in time to drive the late bus runs.
166. During the course of the year mentioned in the preceding paragraph,
Mr. Butterfield and the drivers had discussed how tight the schedule was
for the regular drivers to drive the late runs. Mr. Butterfield told the
drivers that the late bus runs would start at a later time during the
1990-91 school year so that the drivers would have sufficient time to be
able to complete their regular runs and return to drive the late runs.
167. To address the parental concern relating to the late bus, the
school department scheduled the late bus runs to begin at 3:00 p.m. for
the 1990-91 school year.
168. The change mentioned in the preceding paragraph precluded those
driving the regular afternoon bus runs from driving the late run because
they had not returned from their regular runs by the time the late bus runs
began. Additional drivers had to be hired or drivers who did not drive a
regular afternoon run were assigned to drive the late bus runs.
169. The changes implemented by the school department, noted in
paragraphs 160 and 167 above, resulted in many of the drivers working fewer
hours in the fall of 1990 than they had during the 1989-90 school year.
For example, one driver lost 9 3/4 hours per week as a result of said
changes.
170. In the fall of 1990, bus driver Lyle Boutin averaged 29 3/4 hours
work each week, compared with 38 1/2 hours per week during the 1989-90
school year. Bus driver Susan Clements averaged 24 1/2 hours of work per
week in the fall of 1990, compared with 39 1/2 hours per week during the
1989-90 school year. During the fall of 1990, newly-hired driver Bill Pabst
averaged 27 1/4 hours of work per week.
171. In early September, 1990, Union President Lyle Boutin attended a
public meeting of the Monmouth School Committee and, during the public com-
ment portion of the meeting, raised several issues that were matters of
concern to the Union. Among the problems mentioned by Mr. Boutin were the
discharges of Deborah Diamond and Rebeca Velazquez.
172. Superintendent Spearin was upset that the employees hadn't brought
their problems to him first and he expressed his displeasure to the school
-27-
committee. The School Committee then directed Mr. Boutin to meet with the
Superintendent to discuss their concerns.
173. In late September or early October of 1990, several unit employees
met with the Superintendent at the Transportation Supervisor's office,
located adjacent to the middle school. Present for the meeting were:
Superintendent Spearin, High School Principal Crawford, School Committee
member Marge Cottrell, Mr. Butterfield, Blendine Butterfield, Lyle Boutin,
Terry Johnston, Susan Clements, Deborah Diamond, Debbie Grinnell, and
Rebeca Velazquez.
174. The meeting lasted from 45 minutes to an hour and, although
several issues were raised at the meeting including Deborah Diamond's
discharge, nothing was resolved. The bus drivers left the meeting won-
dering what had just taken place.
175. Shortly before Halloween in 1990, School Committee member Cottrell
phoned Deborah Diamond and asked whether the Superintendent had called her.
When Ms. Diamond asked why the Superintendent would be calling her,
Ms. Cottrell stated, "Well, for your job, if you want your job back."
176. Two or three days later, and solely because Ms. Cottrell asked him
to do so, the Superintendent phoned Ms. Diamond, asked whether she would
like to meet with him, and stated that there were some issues that should
be discussed.
177. Either during the course of the conversation noted in the pre-
ceding paragraph or in a second telephone conversation shortly thereafter,
Mr. Spearin and Ms. Diamond agreed on a place, date and time for their
meeting.
178. Ms. Diamond then contacted Union Vice President Terry Johnston and
M.T.A. UniServ Director Rowe to secure union representation for the
upcoming meeting.
179. Prior to the meeting, neither Ms. Diamond nor anyone on behalf of
the Union notified Mr. Spearin that Ms. Diamond would be accompanied by
Union representatives at the meeting.
180. Ms. Diamond, Ms. Rowe and Mr. Johnston arrived at Monmouth Academy
shortly before the scheduled 10:00 a.m. meeting on November 5, 1990.
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Mr. Spearin was not at the school at that time.
181. Ms. Diamond and her representatives waited for approximately 20
minutes and, as they were preparing to leave, saw Mr. Spearin pull into the
yard of the high school.
182. Upon entering the building and seeing Ms. Rowe and Mr. Johnston,
Mr. Spearin became noticeably upset and stated that, while he was willing
to meet with Ms. Diamond one-on-one, he "did not need state or local repre-
sentation to walk him through that process."
183. Ms. Diamond responded that, in light of what had happened, she
felt it necessary to have union representation present for the meeting.
184. Mr. Spearin stated that he would not meet with the Union represen-
tatives present and left the building.
185. For over 20 years, the Monmouth School Department has permitted
those bus drivers who had room to park their buses at their residences to
take the buses home.
186. Prior to April 1, 1991, most, if not all, of the Monmouth bus
drivers took their buses home.
187. At least one of the drivers relied on using the school bus as her
only means of getting to work. Because they only have one car and because
her spouse uses the car to go to work at approximately the same time,
driver Kelly Stevens must use the bus to drive to work.
188. During the course of the meeting noted in paragraph 173 above, the
Superintendent mentioned that the policy of allowing the drivers to take
their buses home might change at some future time.
189. During the spring of 1991, due to fiscal problems being experienced
by the school department, the Superintendent asked the new Transportation
and Maintenance Supervisor, Everett Ray, to determine how much money could
be saved by requiring that the buses be parked at the schools.
190. While he did not subject the Superintendent's query, noted in the
preceding paragraph, to any sort of empirical analysis, Mr. Ray conveyed
his opinion to the Superintendent that requiring the buses to be parked at
the school would save "considerable dollars."
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191. Upon learning Mr. Ray's opinion, the Superintendent directed
Mr. Ray to order the drivers to park the buses at the school and Mr. Ray
did so, during a meeting with the drivers on April 1, 1991.
192. Shortly after the meeting mentioned in the preceding paragraph,
Union President Boutin phoned UniServ Director Rowe and informed her of the
employer's decision concerning the change in bus use policy.
193. Ms. Rowe immediately wrote a letter to Superintendent Spearin,
indicating that the change in the bus use policy constituted a change in
working conditions, requesting recision of the decision, and serving the
statutory notice of the Union's intention to meet within ten days for pur-
poses of collective bargaining over the issue.
194. Three days after the decision was implemented and as a result of
receiving Ms. Rowe's letter, noted in the preceding paragraph, the
Superintendent reversed the decision and permitted the drivers to park
their buses at their residences.
195. When Mr. Butterfield first set up his office in the old "Aggie
Building," located near Monmouth Academy, he created a break room in the
rear portion of the building. The same area was also used to store
supplies and, over a period of time, it became overrun with supplies and
could no longer be used as a break room for the drivers.
196. After losing use of the break room, the drivers often discussed,
in casual conversations with Mr. Butterfield, how nice it would be to have
a break room.
197. During the summer or fall of 1990, the Transportation and
Maintenance Supervisor's office was moved from the "Aggie Building" to the
newly-constructed "Butler Building," located adjacent to the middle school.
198. The school department planned to use the portion of the "Butler
Building" that was not being used as the transportation office for student
programs; however, the department's fiscal problems during the 1990-91
school year precluded hiring personnel for the alternative program that was
to be housed in the "Butler Building."
199. During February or March of 1991, Transportation and Maintenance
Supervisor Ray had a break room built in the "Butler Building" and, during
the meeting mentioned in paragraph 191 above, Mr. Ray announced that the
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break room was available for the drivers' use.
200. At all times relevant hereto, the Monmouth bus drivers and custo-
dians have recorded the hours that they worked each day on time sheets that
they turn in to the Transportation and Maintenance Supervisor at the end of
each week.
201. At some point after the break room was built and prior to May of
1991, Transportation and Maintenance Supervisor Ray told the drivers that
he would like to have a time clock installed in the break room. No time
clock has been installed, to date.
202. A bus trip had been scheduled for the April school vacation.
Although the trip had been cancelled, the middle school principal told
Mr. Ray that a Monmouth bus had been seen in Manchester heading towards
Augusta.
203. The only two buses not parked at the high school at the time of
the alleged incident were those driven by Mr. Boutin and Mr. Johnston, the
Union President and Vice President, respectively.
204. Mr. Ray met separately with Mr. Boutin and Mr. Johnston and asked
whether either had been in Manchester with his bus on the date and time in
question. Each driver denied having been out of town at that time and that
was the end of the matter.
205. For years, the Monmouth School Department avoided paying overtime
by requiring employees who worked more than 40 hours in a given week to
carry forward the hours worked in excess of 40 in a compensatory time bank.
During a week in which an employee worked less than 40 hours, the employee
could receive 40 compensable hours for the week by using time from his/her
comp time bank to make up the deficiency. Under this plan, the employees
received one hour of compensation time for each hour they worked in excess
of 40 hours in a given week.
206. At or about the beginning of the 1989-90 school year,
Mr. Butterfield told the drivers that the practice mentioned in the
preceding paragraph would no longer be allowed, due to a change in law.
207. Despite the announcement mentioned in the preceding paragraph,
Mr. Butterfield continued to allow the employees that he supervised to use
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the comp time system.
208. Mr. Ray became the Transportation and Maintenance Supervisor
effective January 1, 1991. After assuming his duties in Monmouth, Mr. Ray
learned from Blendine Butterfield that the practice outlined in para-
graph 205 above had been occurring.
209. Upon hearing about the past use of comp time, Mr. Ray immediately
decided to put a halt to the practice. Mr. Ray did not, however, com-
municate his decision to the drivers.
210. During the work week beginning on March 7, 1991, Lyle Boutin
worked 29 1/4 hours on his regular runs, 15 hours on a trip to Orono,
and 3 1/2 hours on a trip to Richmond, for a total of 47 3/4 hours.
211. On his time sheet for the work week beginning on March 7, 1991,
Mr. Boutin noted that he had worked 29 1/4 hours on his regular runs and 10
hours on the Orono trip, for a total of 39 1/4 hours.
212. During the work week beginning March 14, 1991, Mr. Boutin worked
29 3/4 hours on his regular runs and sought to use the 8 1/2 hours from the
preceding week to bring his compensable hours up to 38 1/4 hours for the
week.
213. Mr. Ray would not allow Mr. Boutin to add the 8 1/2 hours to his
time sheet, explaining that carrying over hours from week to week was not
proper labor policy and would not be permitted.
214. Mr. Boutin was not compensated for the 8 1/2 hours during the time
that the record was open in this case.
215. On January 9, 1991, the first day of the evidentiary hearing in
this case, Susan Clements was the first witness presented by the Union.
216. On September 18, 1990, Ms. Clements was allegedly injured at work.
217. On October 2, 1990, Ms. Clements filed a First Report of Injury
with the Monmouth School Department, thereby initiating a claim under the
Maine Workers' Compensation Act, Title 39, M.R.S.A.
218. On October 5, 1990, the workers' compensation administrator for
the Monmouth School Department issued a Notice of Controversy, denying
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Ms. Clements' workers' compensation claim on the grounds that the relevant
medical information was incomplete; therefore, compensability could not
allegedly be determined.
219. Ms. Clements has alleged that the work injury that she suffered on
September 18, 1990, has rendered her unable to work. Ms. Clements has not
worked from September 19, 1990, through the close of the record in this
case.
220. From mid-September of 1990 through March of 1991, Ms. Clements'
job was filled by assigning extra runs to other drivers and by hiring
substitute drivers from outside the school department.
221. The school department had been monitoring the progress of
Ms. Clements' medical condition from mid-September, 1990, through March, 1991.
222. Aware of the seriousness of Ms. Clements' medical problems, the
Superintendent wrote Ms. Clements a letter on March 8, 1991, that stated:
Please be advised that I plan to fill your position as a bus
driver for the Monmouth schools effective immediately. If you
find that you are able and are interested in working again for
the Monmouth schools at some future date, you may apply for posi-
tions that become open/available.
Your health benefits paid by the town of Monmouth will ter-
minate effective April 1, 1991 -
Thanking you for your past service --
223. The parties have stipulated that the action taken by Superintendent
Spearin which is reflected in his letter to Sue Clements dated March 8, 1991,
was not related to her job performance.
224. On March 14, 1991, Ms. Clements met with the Superintendent.
Ms. Clements was in obvious pain and her mobility was very limited at that
time.
225. During the meeting, Ms. Clements described her injuries, which
were much more serious than they first appeared, and indicated that she
would be undergoing back surgery to help alleviate her condition.
Ms. Clements indicated that, since September, her physicians had indicated
that she might be able to return to work six or eight weeks later and had
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repeatedly delayed the date on which she might expect to return to work.
As of the date of the meeting, Ms. Clements was unable to estimate when she
might be able to return to work.
226. Throughout the period from September 19, 1990, through the date of
the meeting, Ms. Clements continued to be covered under the Monmouth School
Department's employee group health insurance policy. As noted in the
letter cited in paragraph 222 above, the Superintendent intended to ter-
minate Ms. Clements' health coverage effective April 1, 1991. Ms. Clements
and the Superintendent discussed extending such coverage beyond April 1 and
the Superintendent agreed to extend Ms. Clements' coverage to May 1, 1991.
227. During early March, 1991, two drivers had terminated their
employment with the Monmouth School Department.
228. During March of 1991, Mr. Ray hired Carroll Cooper, Jr., to fill
Ms. Clements' position.
DISCUSSION
The Union's complaint, consisting of seventeen separate counts,
charges that the Employer has violated the Act in a variety of ways.
To place each incident in its appropriate context, we have attempted to
present our findings of fact in chronological order, to the maximum
possible extent. For purposes of analytical clarity and organizational
simplicity, we have discussed all of the charges relating to each section
of the Act together in this decision.
UNLAWFUL INTERFERENCE, RESTRAINT OR COERCION
The Union avers that the Employer interfered with, restrained or
coerced the unit employees in the free exercise of the rights guaranteed by
the Act, in violation of 964(1)(A), through certain statements and
actions that allegedly were made or occurred before, during and after the
bargaining agent election. The standard that we generally apply in eval-
uating alleged violations of 964(1)(A) is as follows:
A finding of interference, restraint, or coercion does not turn
on the employer's motive or on whether the coercion succeeded or
failed, however, but is based on "whether the employer engaged in
conduct which, it may reasonably be said, tends to interfere with
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the free exercise of employee rights under the Act." NLRB v. Ford,
170 F.2d 735, 738 (6th Cir. 1948); Teamsters Local 48 v. Town of
Oakland, MLRB No.78-30 at 3 (Aug. 24, 1978).
Maine State Employees Ass'n v. State Development Office, No. 84-21, slip
op. at 8-9, 7 NPER 20-15017 (Me.L.R.B. July 6, 1984), aff'd, 499 A.2d 165
(Me. 1985); Teamsters Union Local No. 340 v. Town of Orono, No. 91-03,
slip op. at 10-11, 13 NPER ME-22004 (Me.L.R.B. Jan. 31, 1991).
Pre-Election Statements and Questions
The Union's first charge is that the Employer violated 964(1)(A)
through certain statements that Transportation and Maintenance Supervisor
Butterfield allegedly made before the bargaining agent election. The rele-
vant facts are reported in paragraphs 10, 11, 13 and 16 of our findings of
fact. We have always held that Employer statements which either threaten
employees with loss of employment benefits or which promise improved con-
ditions of employment as inducements for the non-selection, circumvention,
or ouster of a bargaining agent violate 964(1)(A). Kittery Employees
Ass'n v. Strahl, No. 86-23, slip op. at 7, 9 NPER ME-18010 (Me.L.R.B.
Jan. 27, 1987); Teamsters Local Union No. 48 v. Rumford/Mexico Sewerage
District, No. 84-08, slip op. at 6-7, 6 NPER 20-15008 (Me.L.R.B. Mar. 12,
1984); Bridgton Federation of Public Emplovees v. Hamill, No. 81-54, slip
op. at 7-9, 4 NPER 20-13013 (Me.L.R.B. Mar. 3, 1982). While the statement
about requiring the employees to wear uniforms probably was de minimis,
Mr. Butterfield's statements about pay and benefit reductions and about
Ms. Diamond's probable loss of summer employment all threatened retaliation
in the event that the employees opted in favor of union representation;
therefore, such statements violated 964(1)(A) of the Act.
The Union has also charged that Mr. Butterfield's inquiries directed
to unit employees, concerning how they and other employees felt about the
Union, violated 964(1)(A). The analysis that we apply in evaluating the
legality of such soundings turns on whether they constituted an employee
poll or were isolated employee questioning concerning union preference.
In the former situation, the inquiries would be subject to the analysis set
forth by the National Labor Relations Board in Struknes Construction Co.,
165 N.L.R.B. 1062 (1967) and applied by this Board in Teamsters Local Union
-35-
No. 48 v. City of Waterville, No. 78-28, slip op. at 3 (Me.L.R.B. July 24,
1978); Council 74, AFSCME v. Town of Millinocket, No. 80-13, slip op. at
5-6, 2 NPER 20-11014 (Me.L.R.B. Mar. 13, 1980). If the questioning did not
rise to the level of a poll, the facts will be examined using the general
unlawful interference, restraint, or coercion test set forth above.
Millinocket, slip op. at 5.
The record indicates that Mr. Butterfield questioned only two of
the sixteen unit employees. In the circumstances, we conclude that
Mr. Butterfield's inquiries did not constitute a polling of the employees.
Quoting Struknes, we pointed out in Millinocket, slip op. at 6, that
" . . . any attempt to ascertain employee views and sympathies regarding
unionism generally tends to cause fear of reprisal in the mind of the
employee if he replies in favor of unionism and, therefore, tends to
impinge on his [ 963] rights." Mr. Butterfield had previously made state-
ments threatening retaliation if the employees opted in favor of represen-
tation, thereby reinforcing the natural fear of reprisal inherent in the
questioning. Applying the reasonable tendency test in the instant case, we
hold that Mr. Butterfield's questioning did violate 964(1)(A).
The Board has concluded that the Employer violated 964(1)(A) through
several pre-election statements by Mr. Butterfield and through his
questioning unit employees concerning their views, and those of other
employees, about the Union. We will provide such remedies as are necessary
to effectuate the policies of the Act. We will order that the Employer
cease and desist from engaging in similar conduct in the future and that
the Employer sign, date, and post a notice of its intention to comply with
our order.
Interference with Voters' Ability to Vote
The Union alleges that Mr. Butterfield interfered with the ability of
pro-union employees to vote in the bargaining agent election. Specifically,
the Union charges that Mr. Butterfield assigned three drivers to a special
run that would coincide with the conduct of the bargaining agent election.
It is incumbent upon the public employer to afford unit employees a reason-
able opportunity to vote in the bargaining agent election. See, Biddeford
Support Staff Ass'n v. Biddeford School Committee, No. 81-47, slip op. at
-36-
5-7, 4 NPER 20-13002 (Me.L.R.B. Nov. 16, 1981); Teamsters Local Union No. 48
and AFSCME, Council 93 and Portland Water District, No. 87-A-04, slip op.
at 5, 9 NPER ME-18009 (Me.L.R.B. Jan. 7, 1987). In the instant case, the
facts in the record fail to substantiate the Union's contention.
The run in question first appeared on the special trip schedule issued
on May 11, 1990, and was posted again on the schedules issued on May 15, 21
and 22, 1990. In each case, the trip was scheduled to end at 1:00 p.m. on
May 29, 1990, the date of the bargaining agent election. The polls for the
election were scheduled to be open from 1:00 to 1:30 p.m. Second, at the
time that he assigned the three drivers to the run, Mr. Butterfield
believed that two of them, Blendine Butterfield and Susan Clements, were
opposed to the union becoming the bargaining agent. Third, no evidence was
presented that the delay in the students' departure from the Cumston Hall
program was either due to, or was within the control of, the Employer.
In the circumstances, we hold that the assignment of the drivers to the
Cumston Hall run on May 29, 1990, did not unlawfully interfere with the
free exercise of the rights protected by the Act.
Post-election Statements
The Union alleges that the Employer violated 964(1)(A) of the Act
through certain statements that it avers Mr. Butterfield made after the
bargaining agent election. This charge is contained in paragraphs 18
through 21 of the Amended Prohibited Practice Complaint. The record fails
to support the averments contained in paragraph 18 of the complaint; there-
fore, we decline to find that the alleged statements were made. We did
find that Mr. Butterfield had separate meetings with the custodians and
with the bus drivers during July and September of 1990, respectively.
During these meetings Mr. Butterfield stated that, because the Union had
demanded to negotiate over the employees' wages, hours and working con-
ditions, the Employer could not implement the wage and benefit package that
had been discussed earlier.
The Union's complaint charges that Mr. Butterfield told the employees
that, because the Union was in and because Union representative Rowe had
written to the Superintendent, there would be no raises because of the
Union. The Union's allegation was clearly based on the impression left by
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Mr. Butterfield's statements on some of the unit employees. Had the record
substantiated the Union's claim, the statements attributed to Mr. Butterfield
would have been ambiguous at best and, in light of his pre-election state-
ments, we would have held that the July and September remarks violated
964(1)(A).
The Board has long held that a public employer violates the statutory
duty to negotiate in good faith if, during the course of collective nego-
tiations including negotiations for an initial collective bargaining
agreement, it unilaterally changes the wages, hours or working conditions
of the bargaining unit employees. Kittery Employees Ass'n, slip op. at
8-10. In the instant case, the Union had become the certified bargaining
agent and had notified the Employer of its intention to negotiate over the
employees' wages, hours and working conditions for the fiscal year beginning
July 1, 1990. The Employer could not unilaterally change the employees'
wages and benefits without violating the duty to bargain.
Local Union president and negotiator Lyle Boutin testified that, at
the July meeting, Mr. Butterfield explained to the unit employees that,
because the Union had served notice of its intent to negotiate over the
mandatory subjects of bargaining for the next fiscal year, the Employer
could not lawfully implement the wage and benefit package that had been
discussed earlier. We conclude that Mr. Butterfield's statements accurately
reflected the state of the law and, therefore, did not violate 964(1)(A).
Our holding on this issue was a very close question and, as guidance to
other parties, we suggest that the better course for the Employer to have
pursued would have been to provide the explanation of why it could not
lawfully implement the wage and benefit package to the unit employees
through a written communication. A memorandum, accurately setting
forth the state of the law, would have been less open to interpreta-
tion and misunderstanding.
The Windshield Incident Involving Deborah Diamond
The next allegation of unlawful interference, restraint or coercion
concerns the June 7, 1990, incident involving Ms. Diamond and the
windshield of Mr. Butterfield's personal vehicle. In the State Development
Office case cited at the beginning of this decision, we held, slip op. at
-38-
9, and the Law Court affirmed, 499 A.2d at 169, that there must be a causal
connection between the employee's exercise of the rights protected by the
Act and the subsequent conduct of the Employer for the latter to violate
964(1)(A) of the Act. We find no such causal connection in this
instance.
On the date and time in question, Ms. Diamond's regular bus was being
repaired and she was using Mr. Butterfield's personal vehicle to transport
three students with special needs. During a heavy rain shower, Ms. Diamond
noticed that, due either to a deficiency in the wipers or to a film on the
windshield, the windshield wipers were ineffective in preventing the accu-
mulation of water on the windshield. When Ms. Diamond reported the
problem, Mr. Butterfield gave her two options: clean the windshield or
complete her run using the medium-sized 36-passenger bus. Ms. Diamond
declined both options and Mr. Butterfield sent her home because there was
no other work for her to perform. Mr. Butterfield cleaned the windshield
and completed the run himself. At the end of their conversation, Ms. Diamond
suggested that she would take the matter "higher" and Mr. Butterfield
replied to "[glo ahead and see how far you get."
The evidence in the record established that Mr. Butterfield was unsuc-
cessful in learning whether Ms. Diamond favored the Union prior to the
bargaining agent election. No evidence was presented that Ms. Diamond was
involved in any organizational or other protected activity prior to the
June 7th incident. We hold that no one viewing these circumstances objec-
tively could find any causal connection between this incident and the exer-
cise of any right guaranteed by the Act.
The Refusal to Allow Ms. Diamond to Continue Taking Her Children to Work
The Union charges that the Employer violated 964(1)(A) by halting
the practice of allowing Ms. Diamond's children to accompany her on her bus
while she was performing her daily work. Prior to June, 1990, and
extending back over several years, the Monmouth school bus drivers had
often taken their children or other relatives on their buses on school
department trips. The Superintendent was first informed of the existence
of the practice in June, 1990. The school department's insurer was con-
tacted and expressed the opinion that the practice exposed the department
to avoidable potential liability and should be discontinued. The
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Superintendent then ordered that the practice be discontinued.
When he recruited her to become a bus driver, Mr. Butterfield told
Ms. Diamond that her children would be able to accompany her on her bus
during her regular runs and they often did so. Mr. Butterfield had con-
tacted the department's insurer, on behalf of the Employer, and requested
that its opinion concerning family members' riding on buses be provided in
writing. The insurance agent expressed its opinion in a letter dated June 25,
1990. Two or three days after receiving the letter, Mr. Butterfield
informed Ms. Diamond of its contents and of the Superintendent's decision.
Since she was unwilling to make alternate child care arrangements, the
Employer's action resulted in Ms. Diamond's not driving the special needs
run during the summer of 1990.
There are two alternate theories under which we might have concluded
that the employer's action violated 964(1)(A): the objective inter-
ference, restraint or coercion standard that we have been applying and the
inherent interference with statutory rights that results from an unlawful
unilateral change. Turning to the first test, we note that there was no
evidence in the record that Ms. Diamond had engaged in any protected activ-
ity prior to the charged action. Second, the Employer's reaction upon
learning of the existence of the practice was fully warranted. The
Employer's interest in minimizing potential liability amply justified its
action. Third, the essence of the drivers' work responsibility is the safe
transportation of the school children. The drivers' attention should be
focused on the safe operation of their vehicles and should not be
distracted by having to pay attention to his or her own children. Finally,
while the Employer's action occurred after certification of the Union as
the bargaining agent and, hence, there is a chronological coincidence
between the two, we are unable to find a causal connection between them.
In the circumstances, we hold that it cannot be reasonably said that the
Employer's action tended to interfere with, restrain or coerce the free
exercise of the rights protected by the Act.
Turning to the alternate theory, we have often stated that "[u]nlawful
unilateral changes and outright refusals by public employers to bargain
over the mandatory subjects of bargaining not only violate the statutory
-40-
duty to negotiate in good faith but also inherently tend to interfere with
the employees' exercise of the bargaining rights guaranteed by the Act."
Maine State Employees Association v. School Committee of the City of
Lewiston, No. 90-12, slip op. at 20, 13 NPER ME-21009 (Me.L.R.B. Aug. 21,
1990), citing Orono Fire Fighters Association v. Town of Orono, No. 89-18,
slip op. at 20, 12 NPER ME-21001 (Me.L.R.B. Sept. 1, 1989); Lane v. Board
of Directors of M.S.A.D. No. 8, 447 A.2d 806, 810 (Me. 1982); Auburn
Firefighters Association v. Valente, No. 87-19, slip op. at 12, 10 NPER
ME-18017 (Me.L.R.B. Sept. 11, 1987). In order to constitute an unlawful
unilateral change, a public employer's action must, among other things,
involve one or more of the mandatory subjects of bargaining. School
Committee of the City of Lewiston, slip op. at 15. The mandatory subjects
of bargaining--wages, hours, working conditions and contract grievance
arbitration--are set forth in 965(1)(C) of the Act. We have adopted the
following legal standard for determining whether a particular topic is
mandatorily negotiable:
Federal courts apply a narrower meaning to the phrase
["wages, hours, and working conditions"]. It "is to be
interpreted in a limited sense which does not include every issue
that might be of interest to unions or employers . . . . In order
for a matter to be subject to mandatory collective bargaining it
must materially or significantly affect the terms or conditions
of employment." (Seattle First National Bank v. N.L.R.B. (9th
Cir. 1971) 444 F.2d 30, 32-33; emphasis in original.) The phrase
does not encompass all "'emolument[s] of value' accruing out of
the employment relationship and . . . not de minimus." (Id., at
p. 33.)
In the federal courts, materiality or significance of an
employer provided service to employees where the service is
optional with the employee is determined by the presence or
absence of such facts as: the extent to which the service
materially affects the employees' living conditions (National
Labor Relations Board v. Lehigh Portland Cement Co. (4th Cir.
1953) 205 F.2d 821, 823); the presence or absence ot feasible
alternatives to the employer provided service available to the
employees (National Labor Relations Board v. Bemis Bro. Bag Co.
(5th Cir. 1953) 206 F.2d 33, 37-38: American Smeltinq and
Refining Company v. N.L.R.B. (9th Cir. 1969) 406 F.2d 552,
554-555; N.L.R.B. v. Package Machinery Company (lst Cir. 1972)
457 F.2d 936, 937-938); the value of the employer provided ser-
vice (National Labor Relations Board v. Lehigh Portland Cement
Co., supra, 205 F.2d at p. 823); and the extent to which the
employer provided service has been presented by the employer as
-41-
an alternative to cash compensation (N.L.R.B. v. Central Illinois
Public Service Company (7th Cir. 1963) 324 F.2d 916, 917, 919.
Associated Faculties of the University of Maine, et al. v. University of
Maine, et al., Nos. 82-15, -16 & -22, slip op. at 9, 5 NPER 20-13030
(Me.L.R.B. Sept. 27, 1982), quoting Social Services Union, Local 535 v.
Board of Supervisors of Santa Barbara County, 82 Cal. App. 3d 498, 147 Cal.
Rptr. 126 (1978).
The practice of allowing the drivers' children to accompany their
parent on trips or regular runs has a minimal effect on the employees'
living conditions. Numerous child care alternatives are available,
including having family members watch the children, engaging babysitting
services, or sending children to day care centers. Finally, there was
no evidence that the Employer ever presented the practice as an alter-
nate form of compensation. Although the avoidance of child care
expenses is a pecuniary benefit to the employees, we conclude that the
practice of permitting employees to take their children with them to
work in the circumstances is not a mandatory subject of bargaining.
In so holding, we reserve judgment on whether employer provided day
care or child care stipends are mandatorily negotiable.
Since it did not involve a mandatory subject of bargaining, the
Employer's discontinuance of the custom of allowing the drivers' children
to accompany their parents while the latter were at work did not constitute
an unlawful unilateral change. The Employer's action did not, therefore,
violate 964(1)(A), under the alternate theory presented above.
Harassment by Telephone of June Carr
After the May 29, 1990, bargaining agent election, custodian June Carr
was elected shop steward for the custodian members of the bargaining unit.
Ms. Carr attended meetings with Mr. Butterfield and custodian Rebeca
Velazquez as the latter's Union representative. Starting on August 6,
1990, and continuing through August 16, 1990, Ms. Carr received harassing
telephone calls at her home. The calls consisted of heavy breathing,
without the caller saying anything. On August 17, 1990, Ms. Carr told
Mr. Butterfield, his sister Blendine, and custodian Carroll Cooper about
the calls and stated that she had had the telephone company install a tap
on her line. Ms. Carr did not receive any further harassing calls after
-42-
the conversation with her three co-workers.
A public employer may be held liable for the conduct of individuals
who act "on behalf of" that employer. 26 M.R.S.A. 962(7). The vicarious
responsibility of a public employer may be established through a showing
that the charged conduct of a supervisory employee occurred within the
scope of the individual's employment, Teamsters Local Union No. 48 v. Town
of Bar Harbor, No. 82-35, slip op. at 12-13, 5 NPER 20-14004 (Me.L.R.B.
Nov. 2, 1982), or by evidence that an individual acted at the behest of and
was subject to the control of the employer at the time the charged conduct
occurred, AFSCME, Council 93 v. Maynard, et al., Nos. 86-22 & -25 and
86-A-03, slip op. at 11, 9 NPER ME-18014 (Me.L.R.B. Mar. 10, 1987), or by
establishing that the employer knew that the charged conduct was occurring,
was in a position to stop it, and failed to do so, Pullen v. Town of
Winthrop, et al., No. 85-17, slip op. at 8, 8 NPER ME-17002 (Me.L.R.B.
Aug. 13, 1985). None of these circumstances were established in the
instant case.
The circumstantial evidence presented suggested that the harassing
calls were made by one of the three persons with whom Ms. Carr discussed
the calls on August 17th; however, no evidence was presented that the three
were the only persons informed about the tap having been installed. Even
had it been established that one of the three employees was the culprit,
the calls were not within the scope of anyone's employment with the
Monmouth School Department. Second, there was no evidence that the
Employer knew about the calls prior to August 17th, much less that it sanc-
tioned their being made. We conclude that no prohibited practice by the
Employer was established in connection with the harassment by telephone of
June Carr.
The Superintendent's Refusal to Meet with Deborah Diamond and Her Union
Representatives
After Ms. Diamond was discharged in August, 1990, Union represen-
tatives attended a school committee meeting in September and attempted to
discuss the termination and several other matters. Committee members asked
whether the Union had raised its concerns with the Superintendent and, upon
learning that it had not, directed the Union to first discuss the matters
-43-
with the Superintendent. Local Union representatives met with the Superin-
tendent in October, 1990; however, the Superintendent said little at the
meeting and nothing was resolved. In late October, a School Committee
member telephoned Ms. Diamond and asked whether Mr. Spearin had called her
about Ms. Diamond's returning to work for the Employer. Shortly thereafter,
the Superintendent called Ms. Diamond and the two arranged to meet to
discuss some issues concerning her employment. Without prior notice to the
Superintendent, Ms. Diamond arrived at the prearranged time and place of
the meeting accompanied by Union representatives. The Superintendent stated
that he would meet with Ms. Diamond, but not if the Union representatives
were present. Ms. Diamond declined to meet alone with Mr. Spearin, and he
cancelled the meeting.
Section 963 of the Act guarantees that, in meetings with their
employer which public employees reasonably believe might result in
disciplinary action, such employees have the right to assistance of a union
representative. Teamsters Local Union No. 48 v. University of Maine,
Nos. 78-16 & -20, slip op. at 12, 1 NPER 20-10021 (Me.L.R.B. June 29,
1979). The parameters of this protection were outlined by the United
States Supreme Court in National Labor Relations Board v. J. Weingarten,
Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed. 2d 171 (1975). Summarizing the
Court's opinion, we note that the right accrues only in instances when the
employee requests representation. 420 U.S. at 257, 95 S.Ct. 963. Second,
the employee's right to representation as a condition to participating in
an interview is limited to circumstances where the employee reasonably
believes that the investigation will result in the imposition of discipline.
The right does not apply to ordinary work site conversations concerning
giving instructions or training or correcting work techniques. 420 U.S. at
257-8, 95 S.Ct. at 963-4. Third, if the employer refuses to allow union
representation, it has no obligation to justify such refusal and it is free
to carry on the investigation so long as it does not interview the employee
who is the subject of the investigation and who was denied representation.
The employee is therefore presented with the choice of having an interview
unaccompanied by his or her representative or foregoing any benefits that
might result from having had a meeting. 420 U.S. at 258, 95 S.Ct. at 964.
Fourth, while the employer has no duty to negotiate with the representative
-44-
at the investigatory interview, the representative's role is to assist the
employee. 420 U.S. at 260-1, 95 S.Ct. at 965. Finally, if the employer
refuses to allow union representation, it cannot require the employee to
participate in the meeting and the employee cannot be disciplined for such
refusal to answer questions after his/her request for union representation
is denied. System 99, 289 NLRB 723, 727 (1988).
The Supreme Court went on to describe the role of the union represen-
tative at an investigatory hearing. The union representative will help to
clarify the issues and to bring out the relevant facts and policies. Good
faith discussion at this level can solve many problems before they can
escalate. A responsible union steward will discourage grievances where the
management action appears to be justified. Likewise, responsible managers
will withhold disciplinary action where it is demonstrated at the outset to
be unwarranted. Discussion and persuasion at this stage may well avoid
formal grievances and save a good deal of time and resources for both the
union and the employer. Weingarten, 420 U.S. 262, n. 7, 95 S.Ct. 966, n. 7,
accord, E. I. Dupont & Co., 289 NLRB 627, 629-30 (1988). The union repre-
sentative's participation in the investigatory interview protects not only
the interests of the individual employee but also those of the entire bar-
gaining unit by assuring, through his or her presence, that the employer
will not impose punishment unjustly. 420 U.S. at 260, 95 S.Ct. at 965.
Turning to the instant case, we note that the meeting scheduled to be
held on November 5, 1990, between Mr. Spearin and Ms. Diamond was not the
typical investigatory interview during which "Weingarten" rights normally
apply. The discharge at issue predated the scheduled meeting by approx-
imately three months; therefore, any questioning of Ms. Diamond could not
result in discipline and could only be beneficial to the former employee.
Second, although we do not credit the Superintendent's testimony con-
cerning the purpose of the meeting, his refusal to meet with the Union
representatives did not violate 964(1)(A). The Superintendent testified
that: (1) he had no purpose in mind in setting up the meeting, (2) one
purpose of the meeting might have been to give him the opportunity to talk
with Ms. Diamond about the reason for her termination, (3) another purpose
was to attempt to shift some of the blame for what had transpired "on all
-45-
of the issues" away from Mr. Butterfield because Mr. Butterfield "was only
in fact acting on directives from the Superintendent," and (4) in no event
was he considering offering re-employment to Ms. Diamond. These explana-
tions for the Superintendent's contacting Ms. Diamond and setting up the
meeting do not ring true. First, setting up a meeting for no reason at all
is not consistent with the Superintendent's nature. Second, the termination
occurred approximately three months earlier and the ostensible reason for
the discharge had been explained to Ms. Diamond by Mr. Butterfield's letter
to her dated August 7, 1990. Third, while attempting to relieve
Mr. Butterfield of some of the responsibility for the unit employees'
problems with the Employer seems like a plausible explanation for the
meeting, Mr. Butterfield had terminated his employment with the Employer,
prior to the Superintendent's initiating contact with Ms. Diamond.
No business purpose would be served, therefore, by attempting to improve
the relationship between Mr. Butterfield and the unit employees.
School Committee member Cottrell's hearsay statement that the purpose
of the meeting would be to discuss Ms. Diamond's re-employment, was corrob-
orated, at least in part, by the Superintendent's subsequent call to
Ms. Diamond. Even if we deem the November 5th meeting to have been the
investigatory interview which Ms. Diamond never had and find that,
depending on her answers to the superintendent's questions, Ms. Diamond
might have been re-employed by the Employer, the Superintendent's refusal
to meet with Ms. Diamond and the Union representatives would not have
violated 964(1)(A). Consistent with the Weingarten decision, the
Superintendent offered to meet with the employee alone and, when she
declined, cancelled the meeting. The Superintendent was under no obliga-
tion to explain or justify the refusal to meet with the Union represen-
tatives. In light of our discussion later in this opinion concerning the
legality of Ms. Diamond's discharge, we need not decide whether the
Employer retaliated against Ms. Diamond for exercising her "Weingarten"
rights. Given the record before us, such a violation would have to rest on
the hearsay from Ms. Cottrell and we decline to base a violation exclusively
on such evidence in these circumstances.
UNLAWFUL DISCRIMINATION
-46-
The Union charges that the Employer has discouraged membership in the
labor organization through discrimination in regard to hire, tenure, and
other terms and conditions of employment in violation of 26 M.R.S.A.
964(1)(B) through a series of actions directed against several bargaining
unit employees. Since we first adopted it in Holmes v. Town of Old Orchard
Beach, No. 82-14, slip op. at 10-11, 5 NPER 20-13029 (Me.L.R.B. Sept. 27,
1982), aff'd sub nom. Town of Old Orchard Beach v. Old Orchard Beach Police
Patrolmen's Association, Nos. CV-82-613 & CV-83-481 (Me. Super. Ct., York
Cty., Oct. 27, 1983), the Board has consistently applied the National Labor
Relations Board's Wright Line test in evaluating alleged violations of
964(1)(B). Teamsters Local Union No. 48 v. Town of Fort Fairfield,
No. 86-01, slip op. at 11, 9 NPER ME-17008 (Me.L.R.B. Jan. 24, 1986);
Ross v. Portland Superintending School Committee, No. 83-04, slip op. at
19-20, 6 NPER 20-14038 (Me.L.R.B. Aug. 29, 1983). The Law Court has
outlined the applicable legal standard as follows:
Under the Wright Line test of causation, the moving party (here
MSEA) has the burden of proving by a preponderance of the evi-
dence that the employee's protected activity was "a substantial
or a motivating factor in the discharge." [NLRB v. Transportation
Management Corp., 462 U.S. 393, 400, 103 S.Ct. 2469, 2473, 76 L.
Ed. 2d 667 (1983) (approving Wright Line test)] (emphasis added).
In the event the moving party succeeds in proving the required
degree of causal connection between the employee's protected
activity and his discharge, the Wright Line test still absolves
an employer who can "prov[e] by a preponderance of the evidence
that the discharge rested on the employee's unprotected conduct
as well and that the employee would have lost his job in any
event." Id. In other words, even if the moving party satisfies
his initial burden of proof, the Wright Line test provides the
employer with an affirmative defense upon its "proof that the
discharge would have occurred in any event and for valid
reasons . . . ." Id.
Maine State Employees Assocation v. State Development Office, 499 A.2d 165,
168-9 (Me. 1985). Although the Law Court described the Wright Line test in
the context of a discharge case, we apply it to all 964(1)(B) cases since
they inherently turn on the issue of employer motivation. Holmes, slip op.
at 11.
Filling the Part-time Maintenance Position
The Union has charged that the Employer's failure to name bus driver
Lyle Boutin to fill the part-time maintenance position at the school
-47-
department violated 964(1)(B) of the Act. The facts relating to this
charge are found in paragraphs 61 through 79 of our findings of fact.
Applying the first tine of the Wright Line test in these circumstances,
we conclude that Mr. Boutin's Union activity was a motivating factor in the
Employer's failure to hire him to fill the maintenance position. The
Employer's Union animus was amply demonstrated by Mr. Butterfield's
numerous anti-Union remarks prior to the bargaining agent election and the
Superintendent's reaction thereto. Shortly after Mr. Butterfield uttered
the anti-Union remarks, the Union reported to the Superintendent that the
statements had been made and he neither repudiated them nor took any action
to prevent their recurrence. Prior to learning of Mr. Boutin's involvement
in Union activity, Mr. Butterfield had repeatedly assured Mr. Boutin that
he probably would get the maintenance position. After discovering that
Mr. Boutin had been the chief employee organizer for the Union and was the
local Union president, Mr. Butterfield told Mr. Boutin that the maintenance
job would have to be posted and Mr. Boutin was welcome to apply.
Mr. Butterfield explained to Mr. Boutin that the position would be filled
through the posting and interview process because the Union had become the
employees' bargaining agent. Together, these facts lead us to conclude that
there was a causal connection between Mr. Boutin's engaging in protected
activity and the Employer's failure to appoint him to the maintenance posi-
tion.
The Employer sought to rebut the Union's contention concerning the
nexus between Mr. Boutin's protected activity and the manner in which the
maintenance position was filled. Mr. Spearin testified that the school
department personnel policy required use of the posting and interview pro-
cess. The relevant portion of the policy states that "[t]he Superintendent
is empowered to advertise for, interview and select support personnel for
positions approved by the school committee," including those that consti-
tute the bargaining unit involved in this case. In practice, the
Superintendent delegated the responsibility for hiring employees in the bus
driver, custodian and maintenance classifications to Transportation and
Maintenance Supervisor Butterfield. Job openings in this unit have been
posted only sporadically and have traditionally been filled by word-of-
-48-
mouth. Persons interested in working for the school department in one of
the unit positions contacted Mr. Butterfield and asked whether there were
any openings. On other occasions, Mr. Butterfield actively recruited a
particular person to fill an existing opening. Shortly after the main-
tenance position was filled, Mr. Butterfield hired a bus driver, without
posting or interviewing candidates other than the person hired.
The Employer sought to avoid being found in violation of 964(1)(B),
pursuant to the second tine of the Wright Line test, by alleging that it
would have hired Mr. Slauenwhite in any event because he was the best
qualified candidate for the position. The record indicates that
Mr. Slauenwhite had not expressed interest in the position prior to its
being posted. In the absence of the unlawful discrimination, the position
vacancy would not have been posted and, it is more likely than not,
Mr. Butterfield would have filled the position by appointing the only per-
son who had expressed interest therein, Mr. Boutin. Second, the evidence
established that both Mr. Slauenwhite and Mr. Boutin were qualified to fill
the position. Although Mr. Slauenwhite apparently had extensive relevant
experience as a retired airline maintenance supervisor, Mr. Butterfield
testified that Mr. Boutin had successfully performed the duties of the
maintenance position, during the nine months that he worked in the classi-
fication on a trial basis. In the circumstances, we hold that the Employer
failed to establish by a preponderance of the evidence its affirmative
defense that Mr. Slauenwhite would have been hired for the maintenance
position in any event.
Since we have held that the Employer violated 964(1)(B) by failing
to appoint Mr. Boutin to fill the maintenance position, we will fashion an
appropriate remedy for this violation. Discussing our remedial authority
pursuant to 968(5)(C) of the Act, the Law Court has stated that "[a] prop-
erly designed remedial order seeks 'a restoration of the situation, as
nearly as possible, to that which would have obtained' but for the unfair
labor practice." Council 74, AFSCME v. Maine State Employees Association,
476 A.2d 699, 704 (Me. 1984), quoting Caribou School Department v. Caribou
Teachers Association, 402 A.2d 1279, 1284 (Me. 1979), and Phelps Dodge Corp.
v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271 (1941). Since
-49
we have concluded that, but for the Employer's unlawful discrimination,
Mr. Boutin would have been named to fill the part-time maintenance position
in the summer of 1990, we will order that the Employer: (1) immediately
and unconditionally offer the maintenance position to Mr. Boutin and (2)
make Mr. Boutin whole for the pay and benefits, together with interest
thereon, that Mr. Boutin would have received had he been named to the main-
tenance position in the summer of 1990. The parties should look to our
original and supplemental orders in Holmes v. Town of Old Orchard Beach,
No. 82-14, 5 NPER 20-13029 and 6 NPER 20-14034 (Me.L.R.B. Sept. 27, 1982
and Aug. 3, 1983), for guidance in determining the amount due to Mr. Boutin
pursuant to our order herein. Since the maintenance position at issue is
only a part-time position, the offset for any amount which Mr. Boutin
earned from other sources during the back pay period is limited to any
amount earned from employment which would have precluded Mr. Boutin from
performing the duties of the maintenance position. In the event that the
parties are unable to reach agreement on the amount due pursuant hereto, we
will retain jurisdiction to decide that amount. Once the Employer has
complied with this provision for back pay, interest, and benefits to
Mr. Boutin, he will have been made whole and the policies of the Act will
have been satisfied.
The Discharge of Maria Rebeca Velazquez
The next issue is whether the discharge of custodian Maria Rebeca
Velazquez violated 964(1)(B). To satisfy its burden under the first
prong of the Wright Line test, the complainant must establish, by a prepon-
derance of the evidence, that: (1) the employee who was the target of the
alleged discrimination had engaged in or was engaging in protected activity
at the time of the charged conduct by the employer; (2) the employer knew
of such participation; and (3) there is a causal connection or nexus between
participation in the protected activity and the charged conduct.
The earliest evidence of union activity in the record was Ms. Clements'
testimony that, in late November, 1989, she and Deborah Diamond informed
Mr. Butterfield that the drivers and custodians were thinking about
becoming organized for collective bargaining purposes. Ms. Velazquez's
employment problems began in early October, 1989, well before the advent of
-50-
any organizing activity.
Second, no evidence was presented that Ms. Velazquez had ever par-
ticipated in any protected activity. There were a few references in the
record to Ms. Velazquez's mother, Maria Boutin, who had worked for the
school department for several years and whose termination in the summer of
1989 may have been a motivating factor in the employees' decision to organ-
ize. The possible inference, that Ms. Velazquez's family ties led to her
problems on the job, is dispelled by examining the Employer's treatment of
her step-father, Maria Boutin's husband, Lyle Boutin, during the period
when Ms. Velazquez's problems were escalating. As discussed above,
beginning in the summer of 1989 and continuing through June, 1990,
Mr. Butterfield had appointed Mr. Boutin to the trial-basis maintenance
position and had effectively promised Mr. Boutin that he would get the
maintenance position, once it became an approved, regularly-funded
classification.
The focus of the Union's charge was the averment that Ms. Velazquez
had been singled out and treated differently than similarly situated
employees. It is clear that, prior to Mr. Butterfield's assuming super-
visory responsibility over the custodians in the spring of 1989, the school
department's custodial service was a very loosely structured organization.
During the summer, custodians appeared to come and go as they pleased and,
during the school year, assigned schedules were often loosely followed.
Custodians who arrived late would make up the time at the end of the work
day or at some other time during the pay period, and, thereby, not lose any
pay as a result of having been late for work. At the beginning of the
1989-90 school year, Mr. Butterfield announced his intention to tighten up
the custodians' attendance practices. While he announced the policy that
only those who had called in to say that they would be late would be
allowed to make up the lost time, Mr. Butterfield allowed everyone,
including those who had not called in, to make up the time lost from having
been late. Despite this somewhat casual policy, it was nevertheless impor-
tant that certain duties be performed in a timely manner. Since the first
duty that Ms. Velazquez performed upon arriving at work had to be performed
at a particular time, it was essential that she either be punctual in
-51-
arriving or call to say she would be late so alternate coverage could be
provided. The first two times that Ms. Velazquez was late without having
called, in October and in November, 1989, Mr. Butterfield gave her oral
reprimands. The second time he also informed her that the next similar
infraction would result in a written reprimand. In January, 1990,
Ms. Velazquez was again late without having given prior notice; she
received a written reprimand and Mr. Butterfield offered to assign the
critical noon duties to another custodian. Ms. Velazquez signed the repri-
mand. Ms. Velazquez received an additional reprimand on June 20, 1990, for
being late for work, among other infractions. Despite refusing to sign the
June 20th reprimand, Ms. Velazquez did not avail herself of the opportunity
to file a written rebuttal. The June 20th reprimand stated that further
problems could mean termination of employment.
During the summer of 1990, the custodians were all assigned to work
from 6:00 a.m. to 2:30 p.m., Monday through Friday. The informal policy of
allowing custodians who arrived late for work to make up the lost time con-
tinued in the summer of 1990. During that summer, most of the custodians
were late for work from time to time and with varying degrees of frequency.
It was clear, however, that none of the other custodians were as late on
any particular occasion or were late as often as was Ms. Velazquez.
During the summer of 1990, it had become clear to all of the unit
employees that tardiness was becoming a significant issue for the Employer.
Ms. Velazquez had received a series of oral and written reprimands based at
least in part on her having been late for work; other unit employees had
received oral reprimands and one had received a written reprimand for tar-
diness; Union steward Carr was attempting to document the arrival times for
all of the custodians; and Ms. Carr had attempted to explain the necessity
for reporting punctually for work to Ms. Velazquez. Despite all of the
emphasis placed on tardiness, Ms. Velazquez was late for nine of the next
seventeen work days, beginning June 20, the day she received the written
reprimand. On these nine occasions, Ms. Velazquez was, on average, over
twenty-two minutes late for work. On July 26, 1990, Ms. Velazquez and
Union representative Rowe met with Mr. Spearin, who suspended Ms. Velazquez
for five days without pay for repeatedly being late for work after the
-52-
June 20th reprimand. On July 30th, the Superintendent wrote Ms. Velazquez
a letter, memorializing the July 26 meeting and stating that "[t]ermination
of employment from the Monmouth School Department will follow any further
or future problem in these areas."
Throughout the period from October 1989 through July 26, 1990, we are
unable to find that Ms. Velazquez was singled out without good reason.
Ms. Velazquez did not deny that the oral reprimands had occurred nor did
she suggest that they were unwarranted. Ms. Velazquez did not challenge
the propriety of the January written reprimand and, while she challenged
the accuracy of portions of the June 20th reprimand, she did not assail the
portion relating to her "being late for work several times." We find that
the discipline imposed in each case was justified. During the summer of
1990, if Ms. Velazquez was singled out, it was because she was the worst
offender and, despite receiving several warnings, Ms. Velazquez seemed
unwilling or unable to arrive on time for work.
The Employer's conduct may have led Ms. Velazquez to misunderstand the
import of the reprimands that she had received. Although she was repri-
manded for tardiness, Ms. Velazquez was allowed to make up the time at the
end of the day or during the same week. All possible ambiguity about the
importance of reporting for work on time should have been resolved by the
five-day suspension without pay. Ms. Velazquez was approximately forty
minutes late for work on the fourth day that she worked after serving the
suspension.
Finally, the Employer's entire approach in dealing with Ms. Velazquez's
employment problems militates against finding unlawful motivation for her
discharge. No collective bargaining agreement was in effect for the unit
employees at any relevant time. The employee job descriptions and the
Employer's personnel policy excerpt in the record do not require that the
unit employees be disciplined only "for cause" nor is progressive discipline
required. Despite this, the Employer did impose discipline progressively
in dealing with Ms. Velazquez and gave her repeated opportunities to
correct her behavior. Since none of the elements necessary to show
unlawful motivation were established in this case, we conclude that
Ms. Velazquez's discharge was not motivated by unlawful animus. Even had
such animus been established, Ms. Velazquez's continued transgressions
-53-
would have warranted her termination in any event.
The Discharge of Deborah Diamond
The next charge of unlawful discrimination concerns the discharge of
Deborah Diamond for failing to attend the school bus rally/safety con-
ference held in Orono on August 2nd and 3rd, 1990. The facts relating to
this allegation are found in paragraphs 80 through 96 of our findings of
fact. In both common parlance and in a legal sense, to discriminate means
to distinguish or differentiate without sufficient legitimate reason for
doing so. N.L.R.B. v. Miranda Fuel Co., Inc., 326 F.2d 172, 181 (2d Cir.
1963). Discrimination occurs in the employment context when similarly
situated employees or groups of employees are treated differently by their
employer. The Employer's requirement that the bus drivers attend the bus
rally as a condition of continued employment applied equally to all of the
unit employees, including those opposed as well as those in favor of the
Union. The Board is unable to discern any unlawful discrimination in con-
nection with the bus rally incident.
As we indicated through our decision in AFSCME, Council 93 v. Governor
McKernan, No. 91-18, slip op. at 1 and 22-23, 14 NPER ME-22007 (Me.L.R.B.
May 31, 1991), aff'd sub nom. State of Maine v. AFSCME, Council 93,
No. CV-91-208 (Me. Super. Ct., Ken. Cty., Nov. 27, 1991), appeal docketed,
No. KEN-91-638 (Me. Dec. 26, 1991), in instances where the operative facts
necessary to establish a violation of a section of the Act have been
pleaded and proven, the Board may conclude that that section has been
violated, even if that particular violation was not pleaded. The purpose
of pleadings is to fairly notify the respondent of the acts complained of,
so that he may fully defend his actions. Unless the respondent is misled
by the failure to plead a particular violation--that is, unless the facts
supporting such a violation are not pleaded--the Board is not prevented from
concluding that such a violation occurred. American Newspaper Publishers
Association v. N.L.R.B., 193 F.2d 782 (7th Cir. 1951), limited cert.
granted (on issue irrelevant here), 344 U.S. 812 (1952), aff'd (on that one
issue) 345 U.S. 100 (1953). The Board has, on occasion, refused to find a
violation where the violation was not alleged until posthearing briefs, if
at all; however, in those instances, the facts supporting the violation
-54-
were not pleaded. Teamsters Local Union No. 48 v. Town of Kennebunk,
No. 80-30, 2 NPER 20-11022 (Me.L.R.B. July 3, 1980); Sanford Federation of
Teachers v. Sanford School Committee, No. 84-13, 6 NPER 20-15009 (Me.L.R.B.
Mar. 20, 1984).
Although it did not involve unlawful discrimination, the Employer's
decision to require the drivers to attend the August, 1990, rally as a con-
dition of continued employment appears, on its face, to constitute an
unlawful unilateral change in violation of sections 964(1)(E) and (A) of
the Act. An employer's unilateral change in a mandatory subject of
bargaining circumvents the statutory duty to bargain in the same way as
does a flat refusal to negotiate over such topics. NLRB v. Katz, 369 U.S.
736, 743, 82 S.Ct. 1107, 1111, 8 L.Ed. 2d 230 (1962); Lane v. Board of
Directors of M.S.A.D. No. 8, 447 A.2d at 809-10 (Me. 1982). In order to
constitute an unlawful unilateral change, an employer's action must: be
unilateral, be a departure from a well-established practice, and involve
one or more of the mandatory subjects of bargaining. An action is unilat-
eral if it is undertaken without prior notice to the bargaining agent
sufficient to allow the latter a reasonable opportunity to demand nego-
tiations thereon. Coulombe v. City of South Portland, No. 86-11, slip op.
at 11, 9 NPER ME-18008 (Me.L.R.B. Dec. 29, 1986).
Paragraphs 40 through 44 of the prohibited practice complaint allege
that, in 1989, the bus drivers had not been required to attend the bus
rally, while, in 1990, Ms. Diamond was discharged for failing to attend.
These allegations taken together with the testimony of the Superintendent,
in response to questions by the school department's attorney as part of the
Respondent's case in-chief, contain all of the factual elements necessary
to establish an unlawful unilateral change.
The Employer sought to establish that requiring the drivers to attend
the two-day bus rally was not a change from established practice because
the drivers' job description permitted the Employer to require such attend-
ance. The relevant portion of the job description provides that the
drivers' "performance responsibilities" include "[t]o attend workshops per-
taining to transportation at the request of the transportation/maintenance
supervisor." The Employer's argument was rebutted by the Superintendent's
-55-
admission that attendance at the Orono rally had been optional prior to
1990 and by Mr. Boutin's testimony that he had never received a copy of the
job description from the Employer. In determining whether a management
decision varies from the established practice, we look at the actual long-
standing practice rather than focusing on the theoretical, but unexercised,
rights of the parties. Coulombe, slip op. at 18-19 n. 1. On the basis of
the record, we find as a matter of fact that the Employer's action, requiring
the drivers to attend the 1990 rally as a condition of continued employment,
was a departure from the established practice in the district.
Second, the Superintendent testified that the Employer's administra-
tive team decided to require the drivers to attend the rally as part of the
Employer's risk management initiative. It is clear that the Union did not
participate in this decision; however, what is less clear is when the Union
received notice of the Employer's action. The employer notified the unit
employees of its decision on two separate occasions, two months prior to
the rally and again one month later. Although we have held that an
employer's giving notice of an action to unit employees is not tantamount
to giving notice to the bargaining agent, Saco Valley Teachers Association
v. M.S.A.D. No. 6 Board of Directors, Nos. 85-07 & -09, slip op. at 12, 8
NPER ME-16013 (Me.L.R.B. Mar. 14, 1985), the fact that such notice was
given does raise the question of whether the bargaining agent has received
actual notice of the change. Based on the parties' stipulation, we find
that the Union did not receive actual notice of the Employer's decision
until July 30, 1990, three days prior to the date of the rally. Such
notice was insufficient to permit the Union to demand negotiations on the
change.
Finally, we have held that requirements imposed by the employer which
must be satisfied by the employees as conditions of continued employment
are mandatory subjects of bargaining. Coulombe, slip op. at 13. In sum,
all of the elements necessary to establish an unlawful unilateral change
were proven herein. We conclude that in requiring the bus drivers to
attend the 1990 rally as a condition of continued employment, the Employer
violated sections 964(1)(E) and (A) of the Act.
Ms. Diamond was terminated solely because of her failure to meet the
unlawfully imposed requirement to attend the 1990 rally; therefore,
-56-
Ms. Diamond's discharge was unlawful. Had the Employer not unlawfully
imposed a new term and condition of employment upon the unit employees,
Ms. Diamond would not have been discharged. Having concluded that
Ms. Diamond's discharge violated sections 964(1)(E) and (A) of the Act, we
will fashion a remedy appropriate to effectuate the policies of the Act.
We are aware that our normal remedies for an unlawful discharge include
ordering: that the employer cease and desist from engaging in such
unlawful conduct; that the employer immediately offer the employee full
reinstatement to her or his former position; that the employee's personnel
file be purged of all references to the discharge; and that the employer
make the employee whole, within the framework outlined in Holmes v. Town
of Old Orchard Beach, No. 82-14, 5 NPER 20-13029 (Me.L.R.B. Sept. 27,
1982), for all lost earnings and benefits resulting from the discharge,
together with interest thereon. In the instant case, we will order the
Employer: to immediately offer Deborah Diamond full reinstatement to her
former position; to purge Ms. Diamond's personnel and other records of all
references to the discharge; and to cease and desist from, in any manner,
interfering with, restraining, or coercing Deborah Diamond in the exercise
of the rights guaranteed her by 26 M.R.S.A. 963.
We are not ordering that Ms. Diamond receive back pay and benefits in
this case because we believe that it is speculative whether Ms. Diamond
would have opted to continue working for the Employer in light of our
holding herein that the Employer could lawfully prohibit the unit employees
from taking their children with them to work. Ms. Diamond testified that,
because the Employer had not allowed her to take her children on the bus
with her in the summer of 1990, she was unable to drive the special needs
run that summer. Ms. Diamond also testified that her son often accompanied
her during her afternoon run in the 1989-90 school year. Since Ms. Diamond
would not be able to take her children to work with her, she may well have
been unable or unwilling to work for the school department since the date
of her discharge.
Reduction of Union Supporters' Work Hours
The Union has charged that the Employer discriminated against those bus
drivers who were known Union adherents by reducing the number of runs
-57-
assigned to each of them in the fall of 1990. Specifically, the Union
alleged that the work hours of drivers Lyle Boutin, Susan Clements and Kelly
Stevens, all known Union supporters, were reduced in the fall of 1990.
At the same time, the work hours of Union opponents Blendine Butterfield and
Carroll Cooper and those of newly-hired employees Leo Castonguay and Bill
Pabst allegedly remained at the prior year's level--at or near forty hours
per week. The relevant facts are reported in paragraphs 154 through 169 of
our findings of fact.
The evidence did not support the Union's contention of discriminatory
treatment. While the evidence did show that Mr. Boutin, Ms. Clements and
Ms. Stevens did have shorter work weeks in the fall of 1990, the record
also established that Mr. Pabst's work week was shorter than Mr. Boutin's
during this period. No evidence was presented concerning the length of
Mr. Castonguay's work week. While Mr. Boutin, Ms. Clements and Ms. Stevens
worked exclusively as bus drivers, Ms. Butterfield worked as the Transpor-
tation and Maintenance Supervisor's secretary and Mr. Cooper performed
custodial work and, later, maintenance work, in addition to their bus
driving duties. Ms. Butterfield and Mr. Cooper were not performing work
that was comparable to that of the Union supporters; therefore, one cannot
fairly compare the length of their work weeks with those of the three
pro-Union drivers. Mr. Pabst, the newly-hired employee who worked exclu-
sively as a bus driver, had a work week of similar length to that of the
pro-Union drivers.
Second, any possible inference of unlawful motive for the changes that
resulted in shortening the work weeks of the bus drivers was dispelled by
the evidence. As a result of parental concerns expressed during the public
forums in the summer of 1990, an additional driver was hired for the kinder-
garten runs which resulted in shortening all of the kindergarten runs.
During the 1989-90 school year, the kindergarten students, the youngest in
the school system, were spending more time riding on buses than any of the
other students in the system. Parents had also expressed concerns about
their children having to be dropped off after dark on the late bus run.
As a result of these comments, the run was started earlier, precluding those
drivers who had regular afternoon runs from driving a late run. While the
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changes to the kindergarten and the late runs resulted in fewer work hours
for the unit employees, such changes were fully justified. In the circum-
stances, we conclude that there was no unlawful discrimination involved in
connection with the bus run assignments and scheduling implemented in the
fall of 1990.
Unlawful Discrimination Resulting from Changes Announced by Transportation
and Maintenance Supervisor Ray on April 1, 1991
The Union has alleged that several actions by the Employer, announced
by Transportation and Maintenance Supervisor Everett Ray during a meeting
with the drivers on April 1, 1991, violated 964(1)(B). Paragraphs 87
through 95 of the prohibited practice complaint charged that the Employer
discouraged membership in the Union through the following instances of
unlawful discrimination announced at the April lst meeting: (1) the
requirement that the drivers park their buses at school, rather than being
able to take them home as had been the practice for at least twenty years;
(2) the decision to provide a break room for the drivers; (3) the installa-
tion of a time clock in the break room and the requirement that the drivers
use the time clock to record their hours worked; and (4) the discontinuance
of the long-standing practice of paying the drivers to clean their buses
both mornings and evenings and the decision that the buses be cleaned only
once per day, at night, thereby resulting in a reduction of the drivers'
pay. No evidence was presented at the hearing concerning the fourth allega-
tion and it was not mentioned in the Complainant's brief. Consistent with
our established practice, we deem this allegation as having been withdrawn.
Coulombe, slip op. at 8-9.
The changes at issue in the three remaining allegations, like the
change concerning mandatory employee attendance at the bus rally, applied
equally to all of the unit employees; therefore, we are unable to find any
unlawful discrimination in connection with these charges. As was the case
with the bus rally averment, each of these charges, on its face, sets forth
all of the elements necessary to allege an unlawful unilateral change in
violation of 964(1)(E) and (A). Second, the Complaint argued that the
conduct underlying each of these charges constituted a unilateral change in
violation of the Act. Brief of behalf of Complainant at 26.
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The evidence established that, for over twenty years, the Monmouth
drivers had been permitted to park their buses at home, in effect, allowing
the employees to use the Employer's vehicles to commute to work. At the
April 1, 1991, meeting, Mr. Ray announced that, effective the following
day, all buses were to be parked at the school nights and weekends. In a
case presenting the identical circumstances we stated:
In the present case there is no question but that a unilat-
eral change in a mandatory subject of bargaining has occurred.
The School Department properly concedes that the use of the
employer's vehicles for transportation to and from work involves
wages and working conditions and accordingly is a mandatory sub-
ject of bargaining. See, e.g., 26 M.R.S.A. 965(1)(C);
Teamsters Local 48 v. Town of Jay, [No. 80-02, slip op. at 5,
2 NPER 20-11006 (Me.L.R.B. Dec. 26, 1979)]; Eagle Material
Handling of New Jersey, 224 NLRB 1529, 1532-33 (1976). The
practice of allowing the 6 drivers to take the buses home at
night had become well-established, having occurred on a regular
basis for 4 or 5 years. And there is no dispute over the fact
that the School Department unilaterally changed this practice in
August, 1980, directing without prior notification to or
bargaining with Local 48, the bus drivers' bargaining agent, that
the drivers leave the buses in the [Town] Garage overnight . . . .
In short, the conclusion is inescapable that the School
District committed a per se violation of 26 M.R.S.A. 964(1)(E)
by unilaterally changing the practice of allowing the school bus
drivers to take the buses home at night. This conclusion is not
based on any evidence of anti-union animus or unlawful motive on
the part of the School Department, but rather is premised on the
principle of law that a failure to bargain is a per se violation,
without regard to motivation. See, e.g., NLRB v. Katz, supra.
Indeed, we are impressed with the harmonious relationship which
appears to exist between the School Department and Local 48.
Teamsters Local Union No. 48 v. Bucksport School Department, No. 81-18,
slip op. at 3-4 and 4-5, 3 NPER 20-12009 (Dec. 22, 1980). Upon being
challenged by the Union in the instant case, the Employer promptly reversed
its decision and, once again, permitted the drivers to park their buses at
their homes. Since all of the factual elements necessary to constitute an
unlawful unilateral change were established herein, we conclude that the
Employer violated 26 M.R.S.A. 964(1)(E) and (A) when it ordered the
drivers to park their buses at the school. We will consider the Employer's
prompt reversal of its violative conduct in fashioning the remedy for these
violations.
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The next question is whether the Employer violated 964(1)(E) and
(A) by providing a break room for the drivers. The evidence established
that, for a substantial period of time, the drivers had expressed the wish
that the Employer create a break room for their use between runs. In the
absence of such a room, drivers either went home between runs or sat in
their buses or stood around the Transportation and Maintenance Supervisor's
office. During the spring of 1991 and without notice to the Union, Mr. Ray
had a break room built and then announced its availability to the drivers.
Once again, since no break room had been available to the drivers for a
number of years, the creation of the facility represented a change from
established practice. Second, the change was unilateral in that no prior
notice thereof was given to the bargaining agent and both it and the unit
employees were presented a fait accompli in connection with the break room.
Applying the mandatory subject test quoted above during our discussion of
the practice of allowing employees to take their children to work with
them, we conclude that, in the circumstances, providing a break room for
the bus drivers was a mandatory subject of bargaining. The break room was
available to all of the drivers. The only alternatives available involved
the drivers going home between runs, expending time and energy to do so, or
sitting in their buses--a less than attractive option in the winter--or
waiting around their supervisor's office. Third, the break room materially
affected the employees' working conditions.
All elements necessary to establish an unlawful unilateral change were
present in connection with providing the break room. We note that, in
determining whether a unilateral change is unlawful, it is irrelevant
whether the change at issue is beneficial to the unit employees. Council
74, AFSCME v. Bangor Water District, No. 81-46, slip op. at 3, 4 NPER
20-12027 (Me.L.R.B. July 2, 1981). Unilateral changes by the employer in
the mandatory subjects of bargaining, whether perceived as beneficial or
harmful by the unit employees, circumvent the bargaining process and inter-
fere with the employees' statutory right to engage in collective bargaining.
Changes viewed as beneficial may be the more insidious violations because
they undermine the bargaining agent's status in the eyes of the unit
employees and place the bargaining agent in the dilemma of having to
challenge a beneficial change in order to preserve the integrity of the
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process. In sum, we hold that the Employer violated 964(1)(E) and (A)
of the Act when it provided a break room for the bus drivers. In addition
to ordering the Employer to cease and desist therefrom in the future, our
usual remedy for an unlawful unilateral change is to order restoration of
the status quo ante. Since the change at issue herein was beneficial to
the unit employees, such restoration order would harm the employees and
undermine the purposes of the Act.
The third in this group of charges concerns the Employer's threat to
install a time clock in the break room and require the drivers to punch in
and out. We have held that, absent a change in work rules, the installa-
tion and mandatory use of time clocks by bargaining unit employees who were
previously required to record their work hours on time cards or time
sheets, does not constitute a significant or material change in a mandatory
subject of bargaining. Teamsters Local Union 48. 48 v. Eastport School
Department, No. 85-18, slip op. at 8, 8 NPER ME-17003 (Me.L.R.B. Oct. 10,
1985). In the instant case, the bus drivers recorded their work hours on
weekly time sheets; hence, no unlawful unilateral change would have
occurred, even if the time clock had actually been installed.
DOMINATION OF EMPLOYEE ORGANIZATION
The Union charged that Mr. Butterfield's post-election statements,
including the declaration that, because of the Union, the unit employees
were not receiving a wage increase, violated 26 M.R.S.A. 964(1)(C).
We have pointed out on numerous occasions that this section of the Act pro-
hibits the public employer from providing "too much financial or other sup-
port of, encouraging the formation of, or actually participating in, the
affairs of the union and thereby potentially dominating it." Council 93,
AFSCME v. City of Portland, No. 90-14, slip op. at 15-16, 13 NPER ME-22001
(Me.L.R.B. Oct. 18, 1990); Teamsters Local 48 v. City of Calais, No. 80-29,
slip op. at 5, 2 NPER 20-11018 (Me.L.R.B. May 13, 1980). No evidence was
presented substantiating a violation of 964(1)(C) of the Act.
DISCRIMINATORY DISCHARGE FOR HAVING TESTIFIED BEFORE THE BOARD
Section 964(1)(D) of the Act "protects the rights of employees and
employee organizations to file petitions or complaints or to give testimony
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before the Board by 'protect[ing] employees involved in any stage of a
Labor Relations Board proceeding from a wide variety of discriminatory
actions by the employer.'" Teamsters Local Union No. 48 v. Town of Wells,
No. 84-29, slip op. at 16, 7 NPER 20-16002 (Me.L.R.B. Oct. 9, 1984).
Section 964(1)(D) charges are analytically similar to allegations of viola-
tion of 964(1)(B) in that both involve employer retaliation through
discimination for an employee's engaging in certain protected activity.
While the particular activity protected in 964(1)(D) is different from
that safeguarded in 964(1)(B), the Wright Line test provides a good ana-
lytical framework for evaluating alleged violations of both sections of the
Act.
The Union has charged that the Employer's discharge of bus driver
Susan Clements violated 964(1)(D). The facts pertaining to this allega-
tion are reported in paragraphs 215 through 228 of our findings of fact.
The Union bases its charge on the following averments: (1) Ms. Clements
allegedly suffered a work-related injury on September 18, 1990; (2)
following that injury and continuing until after Ms. Clements testified
before this Board on Janaury 9, 1991, the duties that had been assigned to
Ms. Clements were completed by having extra runs assigned to the other
regular drivers and by hiring substitute drivers from outside the school
department; and (3) although nothing had happened to change the availability
of the drivers who had been filling in for Ms. Clements, she was terminated
on March 8, 1991.
The evidence in the record substantiated the Union's first and second
allegations concerning Ms. Clements outlined above. The parties stipulated
that Ms. Clements' discharge was not related to her job performance. Mr.
Boutin testified that he did not think that any of the drivers who had been
filling in for Ms. Clements had become unavailable, prior to her being per-
manently replaced. On the other hand, Transportation and Maintenance
Supervisior Ray testified that, at the time that a regular replacement was
hired to fill Ms. Clements' position, two drivers had terminated their
employment with the school department. Of the two, the direct supervisor
of the employees in question was in the better position to know whether any
of them had terminated their employement and we credit his testimony.
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The result of Ms. Clements' conversation with Mr. Spearin on March 14,
1991, tends to undercut a finding of retaliatory motivation by the
Superintendent against Ms. Clements. In his letter to Ms. Clements of
March 8, 1991, Mr. Spearin indicated that the school department intended to
stop paying for Ms. Clements' health insurance effective April 1, 1991. As
a result of the March 14 conversation, the Superintendent agreed that the
Employer would continue paying Ms. Clements' health insurance premium
through May 1, 1991.
The school department had been monitoring Ms. Clements' physical con-
dition since the date of her alleged injury. During the course of medical
treatment since the date of her injury, Ms. Clements' physicians gave her a
series of dates on which she would be able to return to work. As each pro-
jected return-to-work date approached, the physicians updated their progno-
sis and projected that Ms. Clements would be able to return to work on a
new, later date. By March 14, 1991, no final medical result had been
reached in Ms. Clements' case and she told Mr. Spearin that back surgery
would be required to correct her problem. As of March 14th, Ms. Clements'
physicians were unable to estimate when she might be able to return to
work. In the totality of the circumstances, we were unable to find a
causal connection between the fact that Ms. Clements testified before us
and her subsequest discharge; therefore, we will dismiss the 964(1)(D)
charge.
INTERFERENCE WITH RIGHT OF A PUBLIC EMPLOYEE TO GIVE TESTIMONY BEFORE THE
BOARD
The Complainant alleged, at pages 26 and 27 of its Post-Hearing
Memorandum, that the Employer had interfered with the right of public
employee Lyle Boutin to give testimony before this Board, in violation of
964(1)(A) of the Act. The particulars of the Union's charge were that,
knowing that he would soon be giving testimony in the instant proceeding,
the Employer sought to interfere with Mr. Boutin's giving such testimony
by: (1) refusing to allow him to apply hours from his comp time bank to
bring his compensable hours to near 40 during a week when he had worked
less than 40 hours; and (2) accusing him of engaging in unauthorized travel
beyond the school district in his bus. The facts pertaining to these alle-
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gations are reported in paragraphs 202 through 214 of our findings of fact.
In contrast with the underlying facts that constituted the charges
relating to Ms. Diamond's discharge, parking the buses at school, and
establishing a break room, the facts relating to the charge at issue were
not alleged in the Complainant's prohibited practice complaint. Consistent
with the precedent cited in the discussion of our authority to find that
an unlawful unilateral change had resulted in Ms. Diamond's discharge, we
decline to consider whether the acts established by the record constituted
prohibited practices within the meaning of the Act.
While we decline to hold that it constituted a prohibited practice,
the Employer's failure to pay Mr. Boutin for the hours held in his comp
time bank does deserve further comment. If, as was suggested in the testi-
mony, the Employer's practice of allowing employees to "carry over" hours
from one pay period to another violated the Fair Labor Standards Act,
29 U.S.C. 201 et seq., the correct course for the Employer would have
been to: (1) notify the bargaining agent that it intended to discontinue
the practice and outline the reason why the practice was to be halted,
(2)notify the unit employees to record all hours worked in a pay period on
the time sheet for that period, and (3) pay all employees at the
appropriate rate for the hours each had in the comp time bank.
ATTORNEY'S FEES
The Complainant has requested that it be awarded attorney's fees in
this matter. As noted in our recent decision in Teamsters Local Union No.
340 v. Rangeley Lakes School Region, No. 91-22, slip op. at 26, _ NPER
_____ (Me.L.R.B. Jan. 29, 1992), our remedial authority to award attor-
ney's fees is usually limited to "cases involving blatant violations, or
frivolous charges or defenses," eg., Washburn Teachers Association v.
Barnes, No. 83-21, slip op. at 11, 6 NPER 20-14039 (Me.L.R.B. Aug. 24,
1983). While the Union was correct in its assertion, at pages 27-28 of its
Post-Hearing Memorandum, that the Employer had provided little rebuttal to
a few of the Union's charges, facially meritorious, though not always suc-
cessful, defenses were presented by the Employer to the vast majority of
the Union's charges. Second, while some serious violations were estab-
lished, other equally serious alleged violations were either not substan-
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tiated by the evidence or were successfully refuted by the Employer. In
the circumstances, we conclude that an award of attorney's fees to the
Complainant is not warranted.
CONCLUSION
In the final analysis, the development of serious labor relations
problems may have been inevitable at the Monmouth School Department.
The school union structure, of which Monmouth is a part, requires the
Superintendent to divide his work time between two offices, located several
miles apart. As a result, Mr. Spearin was in Monmouth only two days per
week and he was evidently unaware of the existence of several practices
that had become established in the Monmouth School Department. In addition
to the lack of information on the part of the Superintendent, poor manage-
ment practices contributed to a deterioration of the employment relationship
in Monmouth.
Personnel policies and job descriptions outline the parameters of the
employment relationship, create reasonable expectations by both labor and
management, and serve as benchmarks in evaluating employee performance.
While some written personnel policies and job descriptions exist in
Monmouth, they were not provided to the unit employees. Mr. Spearin's
remark that employees could review the personnel policy "[b]y . . . going
to their supervisor and respectfully requesting access to that document"
illustrates the Employer's view. Furthermore, the current personnel policy
does not include a disciplinary procedure. Third, employees testified that
they had not been given copies of the job description for their own classi-
fication.
The complement of employees in the unit at issue is characterized by
rampant nepotism. During the period of time discussed in our opinion,
Mr. Butterfield's subordinate employees included his sister Blendine and
his nephew Wayne, and the workforce included: Lyle Boutin, his wife Maria,
and his step-daughter, Maria Rebeca Velazquez; Susan Clements and her
sister, Deborah Diamond; and Carroll Cooper and his son, Carroll Cooper, Jr.
Such nepotism is not surprising since vacancies in unit positions were
usually filled by word-of-mouth or individual recruitment.
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Finally, the Superintendent exhibited a marked lack of awareness of
the labor relations process. While it did not constitute a violation of
the Act, Mr. Spearin's refusal to meet with Ms. Diamond and her Union
representative and his unwillingness to answer Ms. Rowe's questions during
the meeting over Ms. Velazquez's suspension typify a lack of appreciation
for the respective roles of the parties in a collective bargaining rela-
tionship. Mr. Spearin expressed the belief that workplace problems should
be settled at the lowest possible levels; therefore, he preferred to meet
with an employee directly, without the presence, much less the participa-
tion, of the employee's bargaining agent. The Superintendent apparently
failed to appreciate that, as the chief executive officer for the depart-
ment, any meeting he might have with a unit employee represented a meeting
at the lowest possible level on only one side--the employee's.
Together, the Employer's necessarily detached management style and lack
of knowledge of actual practices, its failure to make personnel policies
and job descriptions readily accessible to the employees, nepotism in the
workforce, and the unwillingness or inability to discuss the reasons for
the imposition of discipline led to employee perceptions of arbitrary or
disparate treatment by the Employer. Unfair treatment, whether perceived
or real, leads to suspicion, distrust, misunderstandings, and a breakdown
of communications in the workplace. It is our fervent hope that this
decision will serve to clear the air at the school department and help the
parties to pursue a healthy, constructive collective bargaining relationship
based on mutual respect, open and frank communication, and reasonable
expectations.
ORDER
On the basis of the foregoing findings of fact and discussion and by
virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by the provisions of 26 M.R.S.A. 968(5) (1988 & Supp. 1991), it is
hereby ORDERED:
1. The Monmouth School Department and its representatives and
agents shall cease and desist from:
a. Threatening its employees that, if they opt in favor
of representation for purposes of collective
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bargaining, they will incur loss of employment, a
reduction in pay, loss of employment benefits, and
they will be required to wear uniforms, if they were
not previously required to do so;
b. Threatening its employees that, with the advent of
collective bargaining, everything would start from
scratch;
c. Asking bargaining unit employees whether they sup-
ported the Union and asking the identity of other
Union supporters;
d. Discouraging membership in any employee organization
by discriminating in regard to hire, tenure of
employment or any term or condition of employment;
e. Making changes in the terms and conditions of
employment of unit employees, including requiring
employees to attend training programs when such
attendance had previously been voluntary, requiring
that the school buses be parked at school during
non-work time, and providing a break room for the
use of unit employees, without first affording the
bargaining agent reasonable advance notice of the
intention to implement such changes and, if requested
by said bargaining agent, to negotiate with said
agent thereover; and
f. Otherwise interfering with, restraining or coercing
employees in the exercise of the right to join, form
and participate in the activities of organizations
of their own choosing or to be represented by said
organizations for purposes of collective bargaining.
2. That the Monmouth School Department take the following actions
necessary to effectuate the policies of the Act:
a. Make to Lyle Boutin an immediate and unconditional
offer of employment with the Department in the part-
time maintenance position. Such offer shall be made
in writing and Mr. Boutin may accept or refuse the
offer and shall communicate his decision to the
District in writing, within ten days of his receipt
of the District's offer;
b. Make Lyle Boutin whole, as if he had been appointed
to fill the maintenance position when it was first
filled in the summer of 1990, by paying to Mr. Boutin
back pay and all benefits to which he would have been
entitled but did not receive, together with interest
thereon, for the period beginning when the maintenance
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position was first filled in the summer of 1990 and
ending on the date of Mr. Boutin's acceptance or
rejection of the District's offer. The amount of
such payment shall be calculated in a manner con-
sistent with the guidelines set forth in our
foregoing discussion;
c. Make to Deborah Diamond an immediate and unconditional
offer of reemployment with the Department in her
former position driving the bus runs for students with
special needs, using the Department's 22-passenger
bus or comparable equipment. Such offer shall be
made in writing and Ms. Diamond may accept or refuse
the offer and shall communicate her decision to the
District in writing, within ten days of her receipt
of the District's offer;
d. Purge Ms. Diamond's personnel file and all other
Monmouth School Department records of all references
to Ms. Diamond's discharge.
e. Sign, date, post and keep posted for thirty (30)
days, in such place or places as notices are normally
posted for the attention of the employees in the
Monmouth School Department Bus Drivers and
Custodians/Maintenance Employees bargaining unit, a
copy of the attached "Notice." The Respondent shall
take such reasonable steps as are necessary to
ensure that said posted notices are not altered,
defaced or covered while they are posted pursuant to
this order.
3. If, within 30 days of the date of this order, the parties are
unable to agree on the amount of back pay, interest, and
benefits due to Lyle Boutin pursuant to this order, the Union
may file with the executive director and serve on the
Employer:
a. a weekly list of gross back pay claimed,
b. a weekly list of actual earnings for any and all
employment during the back pay period,
c. a list of expenses incurred in seeking and holding
interim employment,
d. a list of any benefits claimed,
e. interest claimed, and
f. documents and/or affidavits supporting each item.
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The Employer will have fifteen days from such filing to
respond with documents and/or affidavits bearing on each
disputed item. The Board will thereafter issue a supple-
mental order for back pay, interest, and benefits due, or
conduct such further proceedings as are necessary to
supplement this Order.
4. The Respondent Monmouth School Department shall notify the
executive director within 20 days of the date of this order
as to what steps have been taken to comply with the order.
5. The portions of the Union's complaint, as amended, that are
not addressed in the above order are dismissed.
Dated at Augusta, Maine, this 27th day of February, 1992.
MAINE LABOR RELATIONS BOARD
The parties are advised /s/__________________________
of their right pursuant Peter T. Dawson
to 26 M.R.S.A. 968(5)(F) Chair
(Supp. 1991) to seek review
of this decision and order
by the Superior Court by
filing a complaint, in /s/__________________________
accordance with Rule 80C Howard Reiche, Jr.
of the Maine Rules of Civil Employer Representative
Procedure, within 15 days
of the date of this
decision.
/s/__________________________
George W. Lambertson
Employee Representative
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NOTICE TO
EMPLOYEES
POSTED PURSUANT TO AN ORDER OF THE
MAINE LABOR RELATIONS BOARD
AFTER A HEARING IN WHICH ALL PARTIES HAD AN OPPORTUNITY TO PRESENT EVIDENCE,
IT HAS BEEN DETERMINED THAT WE HAVE VIOLATED THE LAW AND WE HAVE BEEN
ORDERED TO POST THIS NOTICE. WE INTEND TO CARRY OUT THE ORDER OF THE MAINE
LABOR RELATIONS BOARD AND ABIDE BY THE FOLLOWING:
WE WILL cease and desist from interfering with, restraining or
coercing employees in the exercise of their right to join, form
and participate in the activities of organizations of their own
choosing or to be represented by said organizations in collective
bargaining for terms and conditions of employment.
WE WILL cease and desist from discouraging membership in any
employee organization by discriminating in regard to hire or
tenure of employment or any term or condition of employment.
WE WILL cease and desist from making changes in the terms and
conditions of employment of the unit employees without first
affording the bargaining agent reasonable advance notice of the
intention to implement such changes and, if requested by said
bargaining agent, we will negotiate with the bargaining agent
thereon.
WE WILL immediately and unconditionally offer Lyle Boutin
employment with the Department in the part-time maintenance
position.
WE WILL pay to Lyle Boutin back pay and interest and any benefits
to which he would have been entitled, beginning when the main-
tenance position was first filled in the summer of 1990 and
ending on the date of his acceptance or rejection of the
Department's offer required by the preceding paragraph.
WE WILL immediately and unconditionally offer Deborah Diamond
reemployment with the Department in her former position driving
the bus runs for students with special needs.
_____________________ ___________________________________________
Date Rodney Spearin
Superintendent, Monmouth School Department
This notice must remain posted for 30 consecutive days from the date of posting.
Any questions concerning this notice or compliance with its provisions may be
directed to:
STATE OF MAINE
MAINE LABOR RELATIONS BOARD
STATE HOUSE STATION 90, AUGUSTA, MAINE 04333 (207) 289-2015
THIS IS AN OFFICIAL GOVERNMENT NOTICE
AND MUST NOT BE DEFACED.